New Technology, Equity and the Law of the Sea

By Aline Jaeckel (UNSW Sydney/IASS) and Harriet Harden-Davies (University of Wollongong)

Advancements in new technologies open up new ocean industries and possibilities to explore the ocean. Some of these new technologies, such as swarms of underwater mini robots to map the seafloor or sensors on automated underwater vehicles, assist scientists in their work and produce growing quantities of ocean data. Other technologies enable us to extract evermore resources from the ocean, be it wave energy, fish, genetic materials or seafloor minerals. Still others provide new ways to conserve marine ecosystems, such as the use of satellite technologies to monitor human activity at sea and detect illegal fishing in marine protected areas.

Given the many possibilities offered by ocean technologies, the UN Decade of Ocean Science for Sustainable Development starting this year aims to stimulate innovation and access to new technology to increase ocean exploration. Yet, whether new technology will help us achieve the UN Agenda 2030 sustainable development goal of ‘leaving no-one behind’ and contribute to positive social, environmental and economic benefits will depend on how, where, and by whom ocean science and technology is used in pursuit of ‘sustainable development’.

This calls for research and action into how ocean science and technology can address, rather than perpetuate, inequities between states and communities. International law provides the legal framework, though it is far from perfect.  

International law on marine technology

International law regulates the use of marine technology and requires the sharing of technology with developing states, as detailed in Part XIV of the 1982 United Nations Convention on the Law of the Sea (UNCLOS). For example, UNCLOS Article 266 provides for the development and transfer of marine science and technology, for purposes including but not limited to marine conservation and scientific research. The objectives outlined in UNCLOS Article 268 include sharing knowledge, information and data; developing technology and infrastructure; developing human resources; and international cooperation, particularly in scientific research.

In fact, equity concerns have been central to the legal developments that have followed technological advances. For example, in Ambassador Arvid Pardo’s historic 1967 speech to the UN General Assembly, he referenced an ‘oceanographic technology race’ and outlined a vision for the international seabed becoming the common heritage of (hu)mankind to ensure its resources would be shared with all.

But the inclusion of technology transfer in the UNCLOS was controversial at the time. Hesitancy from industrialised states around the need to transfer their marine technology to other states was one of the key reasons why it took fourteen years for the UNCLOS to enter into force. Entry into force was achieved through the 1994 Implementing Agreement (1994 Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982). This Agreement watered down many of the obligations relating to the transfer of marine technology in the context of deep seabed mineral exploration, replacing mandatory obligations with provisions for greater cooperation.

The Agreement also laid the foundations for a broad interpretation of technology transfer, not as a bilateral hardware donation, but as a multi-way exchange of knowledge, skills and technology. The development of the Criteria and Guidelines on the Transfer of Marine Technology by the Intergovernmental Oceanographic Commission of UNESCO further highlighted the role of international science cooperation in achieving marine technology transfer, following the trend set by the UNCLOS and the 1994 Implementing Agreement.

Yet the implementation of the vision for marine technology transfer outlined in the UNCLOS is far from being fully realised. According to the 2020 IOC Global Ocean Science Report “the technical capacity of ocean science remains unequally distributed among countries and regions” (p. 25, see also pp. 30, 36, 121, 122). The need to improve scientific and technological capacity worldwide is emphasized in the UN Sustainable Development Goal Target 14.a:

Target 14.a: Increase scientific knowledge, develop research capacity and transfer marine technology, taking into account the Intergovernmental Oceanographic Commission Criteria and Guidelines on the Transfer of Marine Technology, in order to improve ocean health and to enhance the contribution of marine biodiversity to the development of developing countries, in particular small island developing States and least developed countries.

The importance of strengthening the international legal framework to improve marine technology transfer and build capacity of developing States to conserve the marine environment is illustrated in the current negotiations for a new international agreement on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction (BBNJ). However, uncertainty surrounds the BBNJ negotiations, with remaining questions such as whether technology transfer and capacity building obligations will be mandatory or voluntary (or a mix of both) and whether there will be enabling mechanisms such as funding and access to information.

This highlights that equity considerations raised by technological advances remain a priority and a challenge for the international community today. Long-held aspirations for the benefits — and burdens — of technological advances to be equitably shared highlight the challenge that technological advances may increase, not diminish, disparities between states. Will new technology support states to pursue sustainable development measures, or perpetuate inequities? The outcome will depend on who has the power to develop, deploy and use ocean technology and to what end. One technology that illustrates this challenge is deep seabed mining.

Mining the ocean floor — a new technology with significant risks

Deep seabed mining is a new ocean technology with the potential to have significant environmental and social impacts. The seafloor contains valuable minerals, such as copper, manganese, cobalt and rare Earth elements, which a fledgling industry is seeking to mine in the near future. Very few states currently have access to deep-sea research and seabed mining technology — despite the UNCLOS provisions outlined above.

In June this year, Nauru pushed states to adopt international rules for mining on the ocean floor within two years. It did so by triggering an obscure so-called “2-year rule” provided in section 1(15) of the annex to the 1994 Implementing Agreement. This puts pressure on the International Seabed Authority (ISA), which regulates all minerals on the seabed beyond national jurisdiction. The 2-year rule requires the ISA to adopt mining regulations within two years, although loop holes exist. The rule also allows mining companies to submit an application for a commercial-scale mining project from 2023, regardless of whether or not the mining regulations are adopted by then. Thus, Member States at the ISA now have to decide whether or not to allow this new extractive industry, which could cause serious environmental damage.

Nauru, alongside other developing states, is collaborating with a start-up mining company registered in Canada to participate in mining on the international seabed. The benefit for the company lies in gaining access to so-called reserved areas, which are known to contain commercially-viable quantities of minerals and can currently only be accessed by developing states. Yet, whether this partnership results in significant benefits for Nauru is unclear.

There are several questions that require answers for the decision on seabed mining to be made: Who benefits from seabed mining and who shoulders the burden? Since the social equity dimensions of seabed mining have not been widely discussed, it remains unclear whether the partnerships between developing states and private corporations from the global north are a model for equitable benefit-sharing, or a missed opportunity with the preferential treatment that developing states managed to negotiate for themselves in the UNCLOS. In other words, is seabed mining an economic opportunity for Pacific Island States or a Trojan horse? This remains to be seen.

Key questions relating to new technologies and the law of the sea

The seabed mining example is illustrative of a larger problem facing the international community: technology is often romanticised as a way to explore the ocean, and enable utopic change where environmental sustainability, social equity and economic growth co-exist in harmony. But the international community is a long way from giving social equity questions the priority that they deserve. This is true for the development and deployment of new ocean technology in pursuit of sustainable development, including in blue economy programs seeking to achieve environmental, economic and social goals. These considerations can be pushed aside in international ocean law and policy debates in favour of short-term economic wins. Indeed, social equity considerations are not even given sufficient attention in marine conservation projects, let alone resource extraction endeavours.

Before advancing new technologies and technological solutions for the blue economy, there is a need for a critical conversation about how technologies are used, who benefits, and at what cost.

There is a need for efforts in the UN Decade of Ocean Science for Sustainable Development that helps decision-makers, especially from ocean-dependent communities and states, to better understand how ocean science and technology can support long-term sustainable development and make informed decisions. This requires more than an understanding of what is in the ocean and new technologies to study and explore it. It needs research and actions on the myriad social equity implications of ocean technology and how to develop legal and policy frameworks to ensure that technologies are developed, shared and used in responsible way for present and future generations.

This piece was originally posted on the ILA Reporter. Suggested citation: Aline Jaeckel and Harriet Harden-Davies, ‘New technology, equity and the law of the sea’ on ILA Reporter (10 September 2021) <https://ilareporter.org.au/2021/09/new-technology-equity-and-the-law-of…;