Rare earth elements and yttrium (REY) are rapidly becoming a new frontier in global competition over resources. REY are of critical importance in the development of green energy and are also needed for consumer goods, such as smartphones, computer screens and telescopic lenses, and in medical and military technologies. In 2019, the United States imported 80% of its REY from China, and in 2020, the European Union imported 93% from China. The war in Ukraine and consequent concerns over oil and gas supplies have highlighted the importance of ensuring diversity in supply chains of critical resources.
REY-Rich Mud as an Ocean Resource
REY are not only found on land but, just over ten years ago, Japanese scientists reported on the presence of REY-rich mud in the Pacific Ocean. Whereas China’s monopoly over REY has been partly due to difficulties associated with extracting REY on land, these scientists envisage that recovery of REY from the deep seabed would potentially be easier. This 2011 study reported on sites located in the eastern South and central North Pacific. Japan is especially sensitive to the need to exploit REY-rich mud after China suspended all rare earth exports to Japan following a fishing trawler incident in 2010 near the Senkaku islands.
Japan subsequently located REY-rich mud within 200 nautical miles of its island of Minamitorishima. Japanese scientists have since been working on the effectiveness of its mineral processing of REY-rich mud and are seeking ways to begin exploiting the resource from the deep seabed.
What is missing amid these important scientific developments is the law of the sea. Ocean resources have spurred the development of the law of the sea previously—as evident in the legal recognition of the continental shelf, the complex legal regime associated with fishing activities and the legal rules governing deep seabed mining. In each instance, access to and control over ocean resources have aligned with geopolitical tensions and competition. Claims to REY-rich mud have the potential to prompt similar contests between global powers. So what role does international law play with regards to REY-rich mud?
REY-Rich Mud and the Deep Seabed Legal Regime
From the initial studies, REY-rich mud is a resource located on the deep seabed and hence may be outside the national jurisdiction of States and part of the Area, as defined in Article 1 of the UN Convention on the Law of the Sea (UNCLOS). The Area and its resources are proclaimed to be the common heritage of humankind under Article 136 of UNCLOS, which means that no State may ‘claim, acquire or exercise rights with respect to the minerals recovered from the Area except in accordance with’ Part XI of UNCLOS and the 1994 Agreement on the implementation of Part XI.
The existing legal regime under Part XI of UNCLOS and the 1994 Agreement grants powers to the International Seabed Authority (ISA) to devise rules and regulations with respect to activities in the Area. The ISA has to date developed three sets of regulations addressing exploration for polymetallic nodules, sulphides and cobalt-rich ferromanganese crusts. It is currently working on a draft set of regulations for exploitation of the deep seabed.
Yet to date, the so-called Mining Code does not deal explicitly with exploration or exploitation of REY-rich mud. The ISA’s definition of cobalt-rich crusts refers to rare earth elements on hard-rock substrates, and not the soft substrate (or muddy seafloor) in which REY may also be found. The definition of ‘resources’ in the 2023 draft exploitation regulations is, though, inclusive so an argument could be made that REY-rich mud is covered in relation to exploitation, albeit not exploration. It behoves the ISA to turn its attention to REY-rich mud and fill this regulatory lacuna.
These considerations are inapplicable to REY-rich mud located within 200 nautical miles of a coastal State. Whereas the 1958 Continental Shelf Convention defined the continental shelf with some reference to the geological and geomorphological realities pertaining to coastal States, UNCLOS disconnected the legal construct of the continental shelf from the geological construct. Under Article 76 of UNCLOS, a coastal State has sovereign rights over seabed resources extending up to 200 nautical miles from its baselines, potentially further where certain conditions are met and further to an assessment process by the Commission on the Limits of the Continental Shelf. The latter process is relevant for States with wide continental shelves wishing to ensure that they continue to have rights over the oil and gas located therein. Yet for States, like Japan, with a narrow continental shelf, its sovereign rights instead extend over the deep seabed.
Legal Status of Minamitorishima
One of Japan’s sources of REY-rich mud is located within 200 nautical miles of Minamitorishima (or Marcus Island). Scientists report that there is approximately more than 16 million tons of rare-earth oxides, which could provide global supplies of REY for hundreds of years. Minamitorishima is reported to be ‘about 2,000 km southeast of Tokyo… It is an isolated island formed by a coral reef and with a coast line of about 5.5 km. Its area is about 1.4 km2’. There is an air strip on the island and its only inhabitants are Japanese government officials. It is presently used to observe atmosphere density of greenhouse gases. Historically, Minamitorishima was important for its supply of guano and albatross feathers. Now the resources of interest are not on the island but around it.
The status of Minamitorishima matters because in the absence of sustaining human habitation or an economic life of its own, Minamitorishima might be classified as a ‘rock’ rather than an ‘island’ in accordance with Article 121(3) of UNCLOS. A State may not claim an entitlement to continental shelf rights from a rock.
While Japan has sustained criticism for its claim to a continental shelf and exclusive economic zone (EEZ) off Okinotorishima, no similar protests appear to have been issued in relation to Minamitorishima. Okinotorishima ‘measures just 4.5km east to west and 1.7km north to south’. The claim to island status for Okinotorishima is weaker than Minamitorishima, but under the standards explained in the South China Sea arbitration, if accepted more broadly, Minamitorishima would not be considered an island entitled to an EEZ and continental shelf. A State wishing to restrict Japan’s potential access to REY-rich mud may protest the legal status of Minamitorishima. China would be in no position to do so given its rejection of the South China Sea award.
Environmental Impact of Mining REY-Rich Mud
If Minamitorishima is an island under international law, and for any other States with narrow continental shelves and exclusive sovereign rights over deep seabed areas, does a new resource boom await? If so, States must still be cognisant that they are seeking to exploit the deep seabed. One of the concerns hindering the completion of the Mining Code is the environmental impact of mineral extraction from the deep seabed beyond national jurisdiction. Such concerns should also be extant for mineral extraction from the deep seabed under national jurisdiction.
Every State has an obligation to protect and preserve the marine environment in line with Article 192 of UNCLOS. That obligation exists within a State’s own maritime areas, as well as beyond national jurisdiction. Part XII of UNCLOS includes many other legal obligations related to preventing, reducing and controlling pollution of the marine environment.
To exploit REY-rich mud, the process involves separating the relatively larger grains containing REY from the marine sediment using size separation techniques. A hydrocyclone separator is deployed to separate the grains from the slurry, and it has been proposed that such an instrument, if deployed on the deep seabed floor, would be able to enhance the overall economic efficiency of the operation. It would, however, also potentially generate sizable sediment clouds.
Such an activity would seemingly at least trigger the need for an environmental impact assessment, as required under Article 206 of UNCLOS. Further, just as arguments have been raised about the exercise of precaution in relation to deep seabed mining in the Area, the same should hold true for mining the deep seabed within national jurisdiction. The environmental risks thought to be associated with deep seabed mining include destruction of hydrothermal vent habitats, extinction of species and incalculable damage to deep-sea sponge and coral ecosystems. These risks are not unique to the deep seabed beyond 200 nautical miles of any State.
Whatever the views may be on deep seabed mining, or on the legal status of Minamitorishima, we need to begin a conversation on the laws relevant to REY-rich mud, and especially its exploitation. This regulatory gap is not just problematic in relation to any contest over the status of Minamitorishima. It is a gap that may be relevant in any part of the deep seabed. As the human need for rare earth minerals is apparent, the need for regulation is equally so.
The author is very grateful to A/Professor Aline Jaeckel for comments on an earlier draft and to Varun Rao for editorial assistance. Remaining errors are my own.