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Introduction
Some Conclusions
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Constitutional Law

DSM and environmental protection before domestic courts - UK

Profile image of Alberto PecoraroAlberto Pecoraro

Abstract

Any exploration and exploitation of deep seabed minerals require a decision by a national government. Decisions to grant sponsorship for an ISA contract or to issue a national license over deep sea minerals is amenable to judicial review claims by various interested parties. In such case, when can a sponsorship decision be quashed due to a failure to consider the marine environment's protection? In the attached paper, I look at the situation from the viewpoint of English administrative law - where unincorporated international treaty provisions from UNCLOS cannot be invoked as grounds for judicial review claims. Instead, two other potential grounds are identified: 1) failure to respect s 5 of the Deep Sea Mining Act 1981 that the government "shall have regard to the need to protect (so far as reasonably practicable)” the marine environment, 2) violation of international customary law concerning the protection of the environment. Unfortunately, s 5 in the DSM Act 1981 does not explain whether "the need to protect" the environment includes the obligation to consider the rules of international environmental law related to UNCLOS. In 2014, proposals to amend the DSM Act in that sense were rejected because the government considered that "we do not believe that the amendment would add anything to the legislation." Additionally, a claim based on customary international law (for example to failure to conduct an independent EIA prior to sponsorship) may be hampered by the indeterminacy of custom as well as by the erroneous interpretation of that concept by past decisions. In Framhein v Attorney General of the Cook Islands [2022] UKPC 4, the Privy Council considered the government's failure to complete its own EIA prior to granting fishing rights under a total allowable catch set by a regional fisheries organisation. The Privy Council came to the baffling conclusion that the international customary obligation to conduct an EIA does not apply to harm affecting the high seas. This was because prior ICJ decisions such as Pulp Mills and Costa Rica v Nicaragua considered only environmental harm moving from one state to the other. In conclusion, the litigation of DSM claims before national courts may not be very easy. This is particular the case in dualist legal system which have not transposed fully the international legal framework applicable to deep seabed mining.

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References (47)

  1. Ibid, article 190.
  2. J. Harrison, A. Pecoraro, Dispute settlement and rights of participation in deep seabed mining disputes in V. Tassin Campanella (ed) Handbook of Seabed Mining and the Law of the Sea, Routledge, 2024.
  3. Ibid., article 235.
  4. Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, para 140.
  5. Cambridge Dictionary, available at: https://dictionary.cambridge.org/dictionary/english/in-respect-of 31 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, para 218.
  6. Ibid.
  7. Aarhus Convention, article 2(5).
  8. Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean, article 8.
  9. A. Boyle, Human Rights and the Environment: Where Next? (2012) 23 European Journal of International Law, p. 632, referring to Taskin v. Turkey, 42 EHRR (2006) 50, at paras 113-119.
  10. Cangi and Others v. Turkiye, ECHR Application no. 48173/18, Judgment of 14 November 2023, para 37.
  11. Ibid., Partly Dissenting Opinion of Judge Frederic Krenc, para 6.
  12. UNCLOS, article 147. See also D. Burnett et al, Submarine Cables and Deep Seabed Mining Advancing Common Interests and Addressing UNCLOS "Due Regard" Obligations (2015) ISA Technical Study No. 14. 48 Ibid., s 5. 49 Ibid., s 6.
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  22. 74 Ibid. 75 Framhein v Attorney General [2018] CKCA 5; CA 1.2018 (26 September 2018), [110].
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  27. S. Bell et al, Environmental Law (9th edn), chapter 13, footnote 27.
  28. Ibid.
  29. R (on the application of Finch) v. Surrey County Council and Others [2024] UKSC 20, [10] [25]
  30. R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441, [62]-[63], 99 Berkeley v Secretary of State for the Environment [2001] 2 AC 603, 615.
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  32. R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441, [60]-[62], citing R (London Criminal Courts Solicitors' Association) v Lord Chancellor [2014] EWHC 3020 (Admin).
  33. The Environmental Information Regulations 2004, No. 3391, s 2(2).
  34. Ibid., s 2(1)
  35. C-321/96 Mecklenburg v. Kreis Pinneberg-Der Landrat [1998] ECR I-3809, at [21].
  36. 106 Bell et al, Environmental Law (Oxford University Press, 9th edn, 2017), p. 324.
  37. J. Stanton, C. Prescott, Public Law, 3rd Edition, 2022, p. 466.
  38. Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1989) 57 P&CR 306. 109 Ibid., 329.
  39. E v Secretary of State for Home Department [2004] EWCA Civ 49 (02 February 2004) at [66].
  40. H. Swire, the Minister of State for the Foreign and Commonwealth Office, Hansard, Deep Sea Mining Bill, vol 574 debated on Friday 24 January 2014, Deep Sea Mining Bill -Hansard -UK Parliament 117 TW Logistics v Essex CC [2021] UKSC 4, at [73].
  41. A. L. Jaeckel, The International Seabed Authority and the Precautionary Principle, Brill Nijhoff, 2017, p 68.
  42. Trendtex Trading v. Bank of Nigeria [1975 T. No. 3663], p. 359.
  43. Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62, [31]." 122 Keyu and Others v Secretary of State for Foreign and Commonwealth Affairs [2015] UKSC 69, [146], Per Lord Neuberger.
  44. William Framhein v Attorney General of the Cook Islands [2022] UKPC 4, [89].
  45. 129 Ibid., [90].
  46. 130 Willers v Joyce & Another (Re: Gubay) (deceased) (No 2) [2016] UKSC 44.
  47. The South China Sea Arbitration (Republic of the Philippines v. the People's Republic of China), PCA Case Nº 2013-19, Award of 12 July 2016, para 948.

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