Principles of international environmental protection - Introduction to International Environmental Law - page 113

for granting licences for exploration and eventually exploitation but the state is
obligated to guarantee that the marine environment will not be damaged. These
obligations were defi ned in an advisory opinion by the International Tribunal
for the Law of the Sea (Seabed Disputes Chamber) in 2011.
The small Pacifi c island state of Nauru sponsored a private company's applica-
tion to the ISA for permission to search for polymetallic nodules in the deep
seabed. Nauru later withdrew from the project, fearing problems if the com-
pany's activities polluted the marine environment. Nauru persuaded the ISA to
ask for an advisory opinion from the International Tribunal for the Law of the
Sea about what the duties of a sponsoring state should be when the actual actor
in the exploration and exploitation of the deep seabed is a private company.
The Seabed Disputes Chamber stated in its advisory legal opinion that
all states have an equal responsibility to license and monitor these activities.
What was important in this opinion was the statement by the International
Tribunal for the Law of the Sea that all states have equal obligations in rela-
tion to private exploration of the deep seabed, derived from the principle of
due diligence.
The Chamber thus rejected the possibility of setting up the same sort of 'fl ag
of convenience' states - or, in this case, 'convenience mining' states - in deep
seabed exploitation as exist in seafaring. After this statement there is less incen-
tive for companies to fl ag their companies in countries with lax environmental
protection standards since all states have the same extensive responsibilities to
guarantee that environmental protection is heeded in the exploitation of deep
seabed mineral resources.
A diffi cult question is how to administer activities that operate beyond the
jurisdiction of states and pose a threat to biological diversity. An activity
that is also on the increase on the high seas and in the deep seabed is
bioprospecting, or biological prospecting: searching, processing, patenting and
commercial usage of rare biota.
One such example is the discovery of 'hydrothermal vents', which have
been discovered in depths down to 5 kilometres. The conditions at such
depths (pressure about 350 bar, temperatures ranging from 2 to 400
degrees Celsius, no light) might be expected to exclude the possibility of
life. However, alongside the very hot water discharges from these vents,
there exists a rich and unique set of species with potential for commercial
use; it is vital to use these biota sustainably. Another disturbing new trend
on the high seas is that of industrial trawling, during which the entire
seabed biota and not just the fi sh are vacuumed away. The problem is that
such activities - fi shing, marine research and bioprospecting - fall under
the freedom of the high seas, at least according to the Convention on the
Law of the Sea, and maritime law permits their practice within the limits
of international law.