After a multiple-month delay in response to the global pandemic, the International Seabed Authority is set to convene the second part of the 26th Session in Kingston Jamaica this December. While the format of the December meeting has not yet been announced, a previous postponement from July to October had the meeting substantially abridged compared to past years, with only 7 days stretched between two weeks for both the Council and Assembly meetings. This meeting occurs at a pivotal moment in the development of deep-sea mining and decisions made over the shortened session will determine the pace of progress for years to come.
Secretary-General Lodge is also up for re-election at the next Council meeting.
A critical issue among many stakeholders is how the ISA will handle remote participation going forward. This summer, both the Legal and Technical Commission and the Open-ended Working Group for the financial model met remotely well ahead of the meeting. “Whilst it was disappointing for the ISA not to convene in July,” states Gerard Barron, CEO of DeepGreen, “we remain encouraged by the progress that is being made around the standards and guidelines and the final code. In some ways, remote working should allow more efficiency, which should provide the best chance for the code to come into effect sooner than later.”
Several LTC members expressed frustration with the remote format, acknowledging that timezone issues created a sub-optimal working environment and the virtual format, in some cases, prevented complete participation.
A push for virtual meetings was tabled at the February ISA meeting, with the Brazil delegation, in particular opposed to meetings not held at the ISA headquarters and expressing doubt that remote meetings would facilitate increased participation over in-person meetings. During that discussion, the Belgium delegation noted that nearly two hours of the second day of the meeting had been dedicated to discussing how to do the work, rather than actually doing the work, and suggested that Kingston is not the most accessible location for a meeting, while the Jamaica delegation expressed strong support for continuing to hold all formal meetings in Jamaica. Several member states supported the notion of using outside stakeholders to represent them at meetings when it is too expensive or logistically difficult to send a delegation.
These discussions occurred while the spread of coronavirus was still limited to Wuhan, China and a few small isolated pockets around the globe and will certainly be taken up in December in the wake of a global shift towards remote participation by necessity.
Many stakeholders are optimistic that, even with the challenges of travel, this December’s meeting will be productive. “I think everyone is looking for general progress and to pick up where we left off at the last session,” says Dr. Samantha Smith of Blue Globe Solutions. “Our understanding is that there’s been quite a bit of work occurring in the background, so we look forward to hearing updates on what has been accomplished.”
The environmental NGOs are, unsurprisingly, more skeptical. “It strikes from the abridged nature of the meeting – a week in total for both Council and the Assembly – that it is likely to be pretty barebones,” says Matthew Gianni of the Deep-sea Conservation Coalition, emphasizing that he expects a meeting focused on process, rather than outcomes. “There is an obvious need to discuss the budget, hold elections for seats on the Council, the election of the [Secretary General] and a decision on whether to extend the seven exploration contracts set to expire in 2021 amongst other things. But I think that it would be impossible to advance discussions on the exploitation regulations in any meaningful way at Council in [December]. Nonetheless we would expect that observers as well as all State member countries would be afforded full opportunity to participate in virtually in the meeting of the Council should they wish to do so and it would be helpful to know plans for the meetings of the Council as soon as possible – the agenda, what arrangements will be made for virtual participation, how many hours per day and at which times the meeting will take place, etc. The meeting of both Council and the Assembly are less than seven weeks away – I would guess many delegations are wondering what to expect and how to plan.”
Discussions on the financial regime continue to be the major challenge point for most stakeholder groups. “On the topic of the financial regime,” says Gerard Barron, “a very thorough and thoughtful process is underway with lots of engagement from key stakeholders and I remain confident that this will lead to a financial payments regime that allows the industry to progress.”
However, after this summer’s virtual meetings, one anonymous participant indicated that it did not seem like any real progress had been made towards reaching consensus and that more working groups would be needed in 2021.
Despite that, mining contractors remain optimistic that progress will be made. “It is my understanding,” says managing director of GSR Kris Van Nijen, “that a lot of work is being done in the background. Think of the [Standards and Guidelines] of Phase 1 and the additional study that was requested by the Council back in [February] on comparing rates for land vs sea. So, I am hopeful we can have a good OEWG and move some of that work forward. Until we have agreement on the financial payment regime, the ISA should work on all other aspects.”
Matthew Gianni also emphasized the ongoing debates regarding the power of the Legal and Technical Commision and the need for better geographic representation. “Amongst the concerns are the fact that the LTC wields such enormous influence over awarding mining contracts… If even by a simple majority vote, the LTC recommends approving an application for a license (plan of work), whether for exploration or exploitation, it is impossible for the country members of the ISA from preventing the contract from going through, even if up to 2/3rds of the Council members don’t think it is a good idea, or if as few as three members of the Council in Groups A, B or C, prevent the Council from ‘overturning’ an LTC recommendation. The set up was already awkward in Part XI of UNCLOS and has been made even more problematic by the amendments contained in the 1994 Part XI Agreement. In my view, the approval of a plan of work, particularly for exploitation, should require at a minimum a 75% vote in favor, if not a consensus, by the LTC, the Council and the Assembly to better reflect and operationalize the requirement in UNCLOS that activities in the Area be ‘carried out for the benefit of (hu)mankind as a whole’. How could you say, for example, that permitting mining, or a set of mining operations in an area or on a particular type of ecosystem, was for the benefit of humankind as a whole, if a majority, or even a large minority of countries, did not agree with this? I realize that changing the voting rules is a tall order but it is possible and it has been done once before with the 1994 Agreement. States should be willing to take a good look at this and consider doing it again.”
This summer also saw a significant increase in calls for a deep-sea mining moratorium from civil society and a variety of stakeholders. “I think there is a growing concern over deep-sea mining in the Area on a number of different fronts, including concerns over environmental impacts and the ISA as a regulatory body.” says Gianni, who also challenges the ISA Secretary-General’s address to the Belgium Parliament during this summer’s moratorium hearing. “[Secretary-General Lodge] stated that a moratorium is ‘anti-science and anti-international law’. I disagree. A moratorium is a perfectly reasonable response under international law to the regulation of an activity that scientists have clearly warned poses a threat of irreversible harm to the marine environment, especially considering the size of the mining operations that would be permitted in the [Clarion-Clipperton Zone] and the many scientific uncertainties surrounding the extent of the potential or likely loss of species, biodiversity and ecosystem goods and services.”
“The Secretary General also stated during the hearing that a moratorium is anti-development,” continues Gianni, “I disagree on this point as well and said so during the hearing. A key target in Sustainable Development Goal 14 on oceans is Target 14.2 which commits states to ‘by 2020, sustainably manage, and protect marine and coastal ecosystems to avoid significant adverse impacts, including by strengthening their resilience and take action for their restoration’. Based on what we know now, mining in the CCZ is certain to cause significant adverse impacts on marine ecosystems in the area, weaken the resilience of these ecosystems which are already under stress from the impacts of climate change, pollutants and probably plastics as well, and damage these systems to the point that for all practical purposes they may never recover. So I would argue that deep-sea mining, at least for nodules in the eastern Pacific, is fundamentally contrary to ‘sustainable’ development.”
Dr. Samantha Smith believes the calls for moratoria are counterproductive, not just for the contractors, but for stakeholders invested in maximizing environmental protections. “The irony is that the ISA, contractors, and NGOs calling for a moratorium all believe in and want the same thing – a cautious, step-by-step approach underpinned by robust, peer reviewed science. A moratorium will not deliver that outcome. Quite the opposite. Much of the most relevant research is funded by the industry so a moratorium would inevitably put that at risk.”
While the political process for advancing deep-sea mining has experienced a year of set-backs and delays, technological progress continues apace, as multiple contractors clear benchmarks for their mining systems and platforms. “2020 has been a tough year for everyone,” says Smith, “but GSR, at least, has still demonstrated good progress and completed a very significant milestone. GSR completed two key assessments of its seabed mineral collector technology and this paves the way for an expedition to the CCZ next year.”
“We recently tested the umbilical system,” says Van Nijen, “so we are good to go for the Pacific in 2021. The mining impact project runs until Feb 2022, so the results will be in on time for people to be submitting plans for exploitation and EIAs!”
Meanwhile, DeepGreen is making progress on its recent vessel acquisition. “Allseas are making great progress,” says Barron, “albeit there have been some impacts from COVID on some critical components that will mean we will be in the water in 2022 instead of next year.”
Science-industry partnerships are also ramping up, with DeepGreen recently announcing a $60 million partnership with major research institutes in the US, UK, and Japan.
“GSR is collaborating with the European research project ‘Mining Impact’,” says Van Nijen. “Scientists from 28 European institutes will join efforts with the German exploration contract holder, BGR, to independently monitor next year’s trials in the CCZ to help understand the environmental effects of collecting mineral resources from the seafloor.”
While the Mining Code appears to be off the agenda for the December meeting, Gerard Barron is still optimistic that the code can be completed in a timely manner, but he cautions that we are at a precarious point in the development of the industry. “I think late 2021 is realistic, and we can live with that. Of course we would like to see it earlier, but the final code is not on our critical path until 2022. If we don’t see it in place by end of 2022 we may as all go home and think of something else to do.”
Featured image: the Council gathers for the 26th Session of the ISA in February. Photo by author.