Norway’s approval of Arctic deep seabed mining could collide with international law

In June 2023, the Norwegian government proposed to open 281,000 square kilometers – an area nearly as big as the whole mainland of Norway – for exploration and exploitation for minerals’ deep seabed mining. Norway’s Parliament is currently reviewing the government proposal in its committees and will make the final decision in early January 2024.

© Kystverket / iFinnmark. Adapted by WWF Global Arctic Programme

The sovereign rights of Norway to mine on its continental shelf is limited

The entire area is located on the Norwegian continental shelf. On their continental shelves, coastal states have the exclusive right to explore and exploit natural resources; as recognised by  the United Nations Convention on the Law of the Sea (UNCLOS). The northernmost part of the proposed area overlaps with Svalbard’s Fisheries Protection Zone, which may imply additional obligations of Norway under the Svalbard Treaty. Two parts of the area proposed for deep seabed mining include the seabed which lays beneath the high seas (the  so-called  Banana  Hole); Norway’s sovereign rights apply to the sea floor, but not the water column above.

The environmental impact assessment was too superficial

The environmental impact assessment that accompanied the proposal has been criticized by civil society, scientists and some government institutions (notably the Norwegian Environmental Directorate, the supreme government body for environmental impact assessments). The critics say that it was insufficient in terms of detail and depth of the planned activities and their interaction with local environmental conditions, about which there are still many unknowns. As the Norwegian Supreme Court emphasized in its 2020 Climate Judgment, decisions that are likely to have major societal  consequences must be based on solid grounds for decision-making and balance environmental, economic and social interests. Any environmental impact assessment must be detailed enough to allow decision-makers and the public to make informed evaluations and draw sound conclusions, in spite of uncertainty of the extent of the impacts.

It is noteworthy that, under current Norwegian law, the assessment of such a large-scale deep seabed mining opening decision is governed by rules that are less specific than those applying to the deployment of new oil and gas installations. Even with these more generic rules, the assessment lacks sufficient detail and does not take into account the breadth, specific characteristics and variety of ecosystems that the mining would affect. In the white paper presented to the Parliament, the Ministry of Petroleum and Energy admits that the knowledge about natural and environmental conditions of the area is limited.

Still, the assessment outlines the range of anticipated impacts. Some of these include: destruction of habitats for marine organisms, including rare habitats with special species adapted to unique living environments; emissions from waste materials, which  can  lead  to  siltation  of  vulnerable  benthic  fauna; transport of extraction residues across multiple ecosystems through ocean currents; and harmful effects from drilling and use of chemicals.

The process and conclusions of the environmental assessment are also problematic in relation to the principles enshrined in Norway’s Nature Diversity Act: knowledge base, precautionary and cumulative impact principles.

Norway’s international obligations

Aside from its domestic legislation and national judicial review, Norway has a range of obligations under international law – including to conduct environmental impact assessments, publish environmental information and prevent transboundary harm. 

We will explore these obligations further below in this section. As will be shown, the relevant international instruments typically contain a dedicated mechanism for legal review if a party breaches its obligations, Norway can therefore face a series of international legal challenges if the deep seabed mining project gets a go ahead. 

Environmental assessments

A duty to conduct environmental impact assessments comes from the Espoo Convention and its SEA Protocol – the international instruments that require parties to undertake environmental  impact  assessments  (EIAs – for projects) and  strategic environmental assessments (SEAs – for strategies and plans). 

Norway is a party to both the Espoo Convention and its SEA Protocol. While Espoo Convention obligations apply to projects, the SEA Protocol sets out requirements for assessments at the pre-project stage of the decision-making process. Non-compliance with the Espoo Convention and the SEA Protocol can be  investigated  by  the  Implementation  Committee, based on a complaint from another party, an input from the civil society or on the own initiative of the Committee.  

The Aarhus Convention aims to strengthen the right of individuals to live in an environment that safeguards and  upholds  their  health  and  general  well-being.  The rights under the Convention are executed through, for example, access to information and public participation in environmental impact assessment processes. Non-compliance with the EIA/SEA requirements under the Espoo Convention and the SEA Protocol obligations – such as duty to gather information required for making informed decisions – may also constitute Norway’s breach of the Aarhus Convention, which can be investigated by the Compliance Committee of the Convention.

Law of the Sea

The United Nations Convention on the Law of the Sea (UNCLOS) established a legal framework for all marine areas, delineating maritime zones and corresponding state rights and responsibilities. Like other parties, Norway is bound by UNCLOS obligations, including the general obligation to protect and preserve the marine environment (Article 192 of UNCLOS). This general obligation is complemented by more specific obligations:

• Not to cause damage by pollution to other States and  their  environment,  and  to avoid pollution  spreading beyond the areas where they exercise sovereign  rights (Article 194 of UNCLOS).
• To conduct impact assessments and communicate the results when the planned activities may cause significant pollution or significant and harmful changes to the marine environment (Article 206 of UNCLOS). The Convention on Biological  Diversity  (CBD)  provides that these assessments should include consultation with all states potentially impacted by seabed mineral extraction (and not just with Iceland and Denmark, as Norway did in this case).
• To adopt laws and regulations to prevent, reduce  and control pollution of the marine environment from activities on their continental shelves (Article 208(1) of UNCLOS). Such measures must not be less effective than international rules. In case the International Seabed Authority (ISA) adopts a stricter Mining Code or a moratorium on deep seabed mining on the international seabed, Norway’s project would contravene UNCLOS.

The application of various UNCLOS obligations also triggers access to various international courts and tribunals , such as the International Court of Justice, the International Tribunal for the Law of the Sea or ad hoc arbitral tribunals.

Regional conventions

The Convention for the Protection of the Marine Environment of the North-East Atlantic (the OSPAR Convention), to which Norway is also a party, is a primary regional instrument for the implementation of the environmental provisions of UNCLOS. The area proposed by Norway for deep seabed mining is located within the OSPAR maritime area. The OSPAR Convention requires parties to protect the marine environment within and beyond national jurisdiction, to conserve the marine ecosystems and to apply the precautionary principle, therefore appearing more prescriptive than the UNCLOS.  

Finally, the proposed area also overlaps with Svalbard’s Fisheries Protection Zone under the Svalbard Treaty. The Norwegian Supreme Court recently (in the “Snow Crab” case) concluded that the Svalbard Treaty’s geographical application is limited to Svalbard’s land territory, internal waters and territorial sea (12 nautical miles from the baseline), embracing the longstanding position of the Norwegian government. However, there is major disagreement with Norway’s interpretation and  application  of  the  Svalbard  Treaty,  including  by the  United  Kingdom,  the  Netherlands and the European Commission. Proceeding with deep seabed mining activity in this  contentious  area  risks  escalating  tensions  and  drawing renewed attention to these diverging interpretations, with the potential of the dispute about the geographical extent of the Svalbard Treaty, and thereby the applicability of obligations for Norway and rights for other parties to the Treaty being brought before international courts or tribunals.

New global biodiversity instruments

The new Kunming-Montreal Global Biodiversity Framework (GBF) (adopted under the CBD) also needs to be considered. It contains a target to designate 30% of oceans as marine protected areas between now and 2030. Parties must now consider, in their national implementation plans, how this will be fulfilled and to ensure that these future areas are protected against economic pressures. 

This is also complemented by the new High Seas Treaty, which requires nations to carry out environmental impact assessments for activities which may impact areas beyond national jurisdiction (the high seas and the international seabed). Although this agreement is yet to enter into force, Norway has already signed it and is therefore obliged to refrain from activities that would jeopardize its future implementation.

Conclusion

Through this list of obligations under various international instruments, it is clear that there is a significant likelihood that Norway’s deep seabed mining will be disputed in front of both national and international courts and other review bodies, erasing the long-built image of Norway as a leader in the global ocean agenda. 

We will watch with interest whether the Norwegian Parliament will consider this international litigation – and its potential success – as a reasonable price to pay for Norway’s deep seabed mining adventure.