The International Seabed Authority (ISA) is about to miss a key deadline to establish a deep-sea mining code for international waters.
Once the deadline has passed, companies eager to reap previously out-of-reach resources will be able to formally apply for permits to mine the deep sea. The lack of established regulations raises questions about what will happen to these applications, and member states of the ISA are expected to debate this at Part Two of their 28th Council Session next week.
The SMC asked legal scholar Professor Paul Myburgh to explain the ins and outs of disputes arising from the situation. Feel free to use these comments in your reporting or follow up with the contact details provided.
Note: The SMC has previously gathered expert comments on the science behind deep-sea mining, and its potential environmental impacts.
Professor Paul Myburgh, Auckland University of Technology Law School, comments:
The International Seabed Authority Council will meet next week to discuss regulations for deep sea mining. How long have these discussions been going on, and why is there a push to finalise regulations now?
“The International Seabed Authority (ISA) has been working on a Mining Code for the last two decades. Progress has been tortuously slow.
“The ISA has split the legal drafting of the Mining Code into two separate issues: exploration (prospecting) and exploitation (actual mining). The exploration regulations have been in place for some time, and several exploration permits have already been approved.
“Work drafting the exploitation regulations began in 2014. The most recent revised draft was finalised in 2019. Progress ground to a halt during the COVID-19 pandemic, but in late June 2021, Nauru brought matters to a head by notifying the ISA of plans to apply for approval to begin mining in the Clarion-Clipperton Zone in the Pacific.
“This invoked Section 1(15) of the Annex to the United Nations Convention on the Law of the Sea, which states that if a request is made by a State, the ISA Council has two years to finalise the rules, regulations, and procedures governing deep-sea mining.
“That two-year deadline runs out on Sunday 9 July 2023, the day before Part II of the ISA’s 28th session gets underway. It clearly cannot be met.”
Do you expect the Council to reach a consensus about deep sea mining regulations at this Session?
“Given the highly complex and technical nature of the regulations, the increased controversy surrounding seabed mining, and the sharply divergent views amongst member States, I suspect it is unlikely that consensus will be reached at this Session. Although several days have been set aside to debate the regulations, many submissions calling for drafting amendments have already been received.
“Even if consensus can be reached on all aspects of the draft regulations, further drafting of detailed practices and procedures will be required.”
What will happen to applications to commence deep-sea mining if the regulations aren’t finalised before the “two-year” deadline?
“That is the million-dollar question. Section (1)(15)(c) of the Annex deals with this scenario, but its drafting is less than crystal clear. It says:
- “If the Council has not completed the elaboration of the rules, regulations and procedures relating to exploitation within the prescribed time and an application for approval of a plan of work for exploitation is pending, it shall none the less consider and provisionally approve such plan of work based on the provisions of [UNCLOS] and any rules, regulations and procedures that the Council may have adopted provisionally, or on the basis of the norms contained in [UNCLOS] and the terms and principles contained in this Annex as well as the principle of non-discrimination among contractors.”
“States in favour of accelerating seabed mining have argued that this means that the Council must approve any mining applications, whether the regulations are ready or not. There is, however, significant debate around what ‘provisional approval’ means, and whether this Section of the Annex must be interpreted literally, or in light of the purpose of the Convention. If ‘consideration’ by the Council is more than just a rubber stamp, it cannot mean that provisional approval will automatically follow after consideration.
“Matters of substance must be decided by consensus or, failing that, by a two-thirds majority vote. In the current climate, there is little likelihood of seabed mining applications passing as a matter of consensus. States who are opposed to seabed mining, or who want a moratorium until the science is clearer (including Aotearoa) will hope for the best-case scenario of a 2/3 vote in Council turning down mining applications. It is unclear, however, whether those numbers will stack up.
“In the event of a less than 2/3 vote one way or the other, section 3(11) of the Annex says:
- “If the Council does not take a decision on a recommendation for approval of a plan of work within a prescribed period, the recommendation shall be deemed to have been approved by the Council at the end of that period. The prescribed period shall normally be 60 days unless the Council decides to provide for a longer period.”
“The literal effect of this provision is that a deadlock means that the mining application passes by default 60 days after the relevant Session, and mining can then commence. A further problem is that this section does not talk about ‘provisional approval’, which suggests that final and full approval will be deemed to have been given after a 60-day delay.
“States opposing processing of mining applications say that the Council can and should decide on a longer period, at least until the exploitation regulations are finalised. Others argue that any extension of the 60-day period is not meant to be based on the Council’s inability to finalise the regulations, as section 1(15) already deals with this problem.
“It now seems increasingly likely that if a mining application is approved by the ISA Council (or is deemed to be approved by default after 60 days) a member State will declare a dispute and refer the issue to the International Tribunal of the Law of the Sea in Hamburg to interpret these legal provisions. The International Tribunal will have the final say on what these legal provisions mean.”
How does the new UN treaty for the conservation and sustainable use of marine biodiversity beyond national jurisdiction fit into all this?
“The 2023 UN Treaty on the conservation and sustainable use of marine biodiversity beyond national jurisdiction (the BBNJ) sets a high standard for environmental impact assessments before allowing any activities that may affect marine biodiversity beyond national jurisdictions. This area directly overlaps geographically with the jurisdiction of the ISA over seabed mining.
“In some respects, the two regimes are consistent, but the BBNJ requires decision-makers additionally to consider all social, cultural, and human health impacts of activities that impact on marine biodiversity. This more holistic approach is absent in the older provisions establishing the ISA, which tend to view seabed mining through a more economic lens.
“The BBNJ further requires Environmental Impact Assessments to be based not only on best available science and scientific information, but also on ‘relevant traditional knowledge of Indigenous Peoples and local communities’. Again, this broader consultative dimension is notably absent from the older ISA regime.
“The adoption of the BBNJ is thus likely to significantly raise the bar for applicants for deep sea mining permits, as they will have to meet not only the financial and economic commitments imposed by the ISA, but also the broader and arguably more rigorous societal, cultural, heritage, and specific environmental prerequisites of the BBNJ.”
Conflict of interest: None