Protecting the sea and the seabed

A few days ago, it was reported that US President Donald Trump signed an executive order “to expand deep sea mining for rare earth minerals in domestic and international waters”. This is naturally a very controversial administrative step on the part of a government of a state.

This flies in the face of existing notions on the public domain and the common heritage of mankind. It was the subject of the international treaty promoted by Malta in the 1960s, which eventually resulted in the UN Convention on the Law of the Sea (UNCLOS), based on the concept that the seas and oceans are part of the common heritage of mankind.

The agreement received very wide international support, though the US appears not to have signed that treaty, based on the idea that these public domain areas cannot be appropriated, destroyed or exploited by single states or private entities. The public domain was to be retained for the benefit of the populations, present and future, of the entire world. 

We find similar initiatives and even treaties relating to Antarctica, the moon and outer space. Even as a small state, Malta had and should continue to have clear views and positions on what is unfolding. Threats, abuse, discussions and controversies are very similar.

The concept of public domain originates in Roman law concept such as that of res nullius and res communis, which is more specific in scope and indicates the underlying spirit of how the law treats such property due to its nature. These were extra commercium. 

This is still the law today in most legal systems including our own where we refer to the public domain, from Italian law demanio pubblico and English law on the ‘commons’.

The threat by private interests, with power and money behind them, is increasing dramatically and, now, we even see the US president, and, clearly, a group of very wealthy “investors”, joining the club.

The concept of the public domain is based on property forming part of the earth, which is abundant, such that everyone can use it for their personal needs without causing harm to such property and without limiting in any way the enjoyment of such property by others.

We can all use the foreshore, swim in the sea, we can fish and so on. The limitation is that we can only use it for our personal (human) needs. It is clear that no one can catch and eat enough fish to cause any harm as nature provides abundantly. It’s the same with the open countryside, forests, the valleys, rivers and the mountains.

These are all public domain and everyone can use them for their personal enjoyment and needs, for free, and any encroachment or hindrance must be extremely limited and exceptional. There is no need to pay for the use as personal use will never deplete the abundant resource, so we can all continue to enjoy these resources, forever, if properly managed. We entrust the state with the management of these spaces.

Without regulation the public domain property would be totally consumed for profit- Max Ganado

This changes radically when a business (or a state) seeks to exploit these common and abundant natural resources for economic outcomes, rather than for their natural purposes. There we all see how it can deplete what nature has so generously given us all for free. After centuries of this happening, we saw a change in approach and that is where states started to intervene not to appropriate but to protect and manage competing demands.

Commercial exploitation needed to be regulated and could only be done under concessions or licence under strict conditions. Without regulation, the public domain property would be totally consumed for profit – money has no limits – and the public enjoyment eliminated. We see what is happening with commercial exploitation of fish stocks in the open seas.

One hopes that states would be inspired managers of these resources in their own territories and seas, let alone in international waters.

The threat we are seeing in President Trump’s executive order is that the grant of licences for the exploitation of deep-sea minerals is not only limited to the territorial seas and the exclusive economic zone of the US but purports to go beyond these areas into international waters.

The risk of a ‘land grab’ and possible disputes for control and freedom to exploit, which we saw centuries ago in the colonial eras of history, can once again be ignited.

The open oceans will attract anyone with power and money whose behaviours are not moderated by respect for the environment, importance of natural balance in nature, respect of the rights of free enjoyment of every human being of benefits by all participants in the global resources use but profit. States do charge concession fees and tax profits but history has shown an enormous disproportion emerging between what the states recover and the profits of commercial operators.

We are living another case of exploitation of a free public domain resource in our technology era – the internet – which business jumped onto and took over, finishing up with monopolies. The rest of the populations of the world are almost dependent on their services and products.

It was and remains a ‘free for all’ environment. Those who ran in and monopolised the space do not appear to have common good visions but saw only economic opportunities, which clearly have no limits.

Do we want the same to happen with our seas, seabed and ocean floors?

Max Ganado is a lawyer by profession and has practised in Malta for over 40 years. He has contributed to the drafting of the public domain law in Malta and lectures on the subject as part of the law degree at the University of Malta.