• August 22, 2022
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Legal Consequences of the Two-Year Rule at the ISA and Implications of Missing the Deadline

Interview with Pradeep A. Singh

As part of the 27th Session of the International Seabed Authority, the Council met from 18-29 July and the Assembly from 1-5 August. One key topic that reverberated throughout the meetings was the looming deadline to complete the elaboration and adoption of regulations that would allow exploitation activities to commence, which is a consequence of the invocation of a treaty provision known as the “two-year rule” by the Republic of Nauru last year. With the deadline expiring in July 2023, anxiety surrounding member states, observers, stakeholders, as well as media and members of the public was palpable. In particular, there remains a lot of uncertainty with respect to the consequences of the so-called deadline and the legal implications if the ISA is not able to meet the deadline. In a recently published paper in the International Journal of Marine and Coastal Law, Pradeep A. Singh forensically examined the two-year rule and provided insight into how the provision should be legally interpreted as well as how the ISA should politically approach the situation now that it has been invoked.

DSM Observer: Could you explain the “two-year rule”?

Pradeep Singh: The two-year rule provision is not found in the UN Convention on the Law of the Sea 1982 but in the subsequent 1994 Agreement that modified Part XI of the Convention. It was inserted to prevent a situation where there was a deadlock in the negotiations of regulations for exploitation, which must be adopted by consensus. In other words, one single objection at the Council would prevent the regulations from being adopted. Under normal circumstances, if the regulations were not in place, the ISA would not be able to consider mining applications. The said provision allows any member state to submit a request that the exploitation regulations be adopted within two years and provides a way out if there was such an impasse, namely, by allowing for applications to be considered and provisionally approved notwithstanding the absence of regulations. The Republic of Nauru invoked the provision last year, and the so-called deadline expires in less than a year from now on 9 July 2023.

DSMO: Is it correct to say that the ISA must adopt mining regulations by the July 2023 deadline?

PS: Some hold firmly to the contention that the deadline is a hard or absolute one and the ISA must meet it at all cost. I actually disagree with that view. In fact, as I argued in the paper, the two-year rule provision actually acknowledges that the ISA could miss the deadline and provides the implications that follows. Hence, while I acknowledge that the clock is ticking, I argue in the paper that the so-called deadline is not a hard one. Further, I contend that if meeting the deadline means that negotiations on the regulations will need to be rushed through despite member states and stakeholders having outstanding concerns, this is certainly not desirable. In another recent paper in Marine Policy, I outlined that the very long list of very essential but unresolved matters that still need to be debated and agreed upon before exploitation activities can be allowed to commence. This includes agreeing on an appropriate mechanism for the equitable sharing of benefits, which the ISA has barely started discussing, as well as taking steps to establishing thresholds to ensure the effective protection of the marine environment from the harmful effects of mining activities, which seems to require a lot of work and scientific knowledge. My view, therefore, is that the ISA should not consider itself bound to the deadline. In any case, legally speaking, the consequences of missing the deadline is nowhere as serious as striving to meet the deadline at all costs and ending up with a weak set of regulations.

DSM Observer: Several states made interventions during the recent meeting to the effect that the Council was not beholden to the deadline. Does missing that deadline mean that any mining application would receive automatic approval in the absence of regulations?

PS: Well, that is one view. I take a different view and argue in the paper that this is not an automated process. First of all, an application must be submitted for consideration. Unless we come to a situation where there is a deadlock in negotiations and a handful of states are blocking the adoption of the regulations, it would seem unlikely that an application would even be submitted. Not especially where it is clear that the ISA is earnestly and conspicuously negotiating the regulations. An applicant and the sponsoring state(s) might risk serious reputational harm if they choose to push ahead where others remain focused on developing a robust regime. It follows that if there are no applications, then missing the deadline becomes largely inconsequential and the ISA could continue with negotiations taking the much needed time that it requires. Secondly, I argue that even if an application is submitted and the regulations remain absent, the ISA Council still remains in a position to reject the application upon consideration. The chances of this happening is real, especially if the regulations are still being negotiated in good faith by all member states as opposed to where there is a deadlock. Thirdly, I suggest in the paper that even if an application is provisionally approved, there I still room to argue that this does not necessarily mean that a contract will be awarded to the successful applicant. I contend that while the Council may decide to provisionally approve an application, the signing of the contract should only take place later once the regulations are in effect, without which actual mining activities cannot commence. However, I should add a disclaimer here that these are just my views.

DSM Observer: It seems like your interpretation could negate the very reason the two-year rule exists?

PS: Actually, I think the interpretations that I offer would rather be the ones that give full effect to why we have the provision in the first place, namely, that the ISA should move collectively together and that a small number of states or actors should not be dictating how things proceed. As I argued before in a commentary for the DSM Observer, it is important to recall why we have this provision and the circumstances under which it has been invoked is very relevant to how the response should be, both legally and politically speaking. Moreover, if the ISA truly seeks to make informed decisions based on science, it has to acknowledge that this takes time. Blindly adhering to the two-year rule and pushing to meet the deadline at the expense of science and in the absence of appropriate and effective science-based environmental thresholds and standards would seem to undermine the spirit of the Convention, at least in my opinion.

DSMO: In your view, what are the next steps for the ISA?

PS: In an earlier paper also published in the International Journal of Marine and Coastal Law, I highlighted several options or pathways that the ISA could take from this point onwards. Apart from the undesirable option of rushing to meet the deadline and making numerous compromises or concessions along the way, there are other possibilities. One option is to seek an advisory opinion from the International Tribunal for the Law of the Sea. This could provide some legal clarity on the consequences of the deadline and implications of missing it as well as how the obligation of the ISA to ensure the effective protection of the marine environment stands to be affected because of the invocation of the two-year rule/deadline. Another option could be to adopt a precautionary pause and delay the transition from exploration to exploitation or to impose a moratorium until certain conditions are met, which would obviously include environmental considerations. Other options include creating a provisional regime specifically to cater for the scenario of plans of work that are approved while the regulations remain absent that will subsequently be revisited and subject to further confirmation, or adopting the regulations but with conditions precedent to their future entry into force. Of course, there is also the option to simply take as much time as needed to continue negotiations on the regulations irrespective of the deadline (and thereby dissuading any potential applications), which I hope the ISA can at least agree to take if all other options are deemed not viable. Finally, while the negotiations on the regulations are taking place at the Council, I firmly believe that the implications of the two-year rule and the looming deadline should be debated at the Assembly where all member states are represented. Otherwise, there is a real risk of disconnect between both organs.

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Pradeep A. Singh is a Fellow at the Institute for Advanced Sustainability Studies (IASS) in Potsdam, Germany. He is also an independent consultant on topics related to seabed mining and ocean governance, and currently serves as Deputy Chair of the Ocean Law Specialist Group at the IUCN World Commission on Environmental Law.

The papers mentioned in the above interview are accessible using the following links:

  1. Pradeep A. Singh. “The Invocation of the ‘Two-Year Rule’ at the International Seabed Authority: Legal Consequences and Implications.” International Journal of Marine and Coastal Law (2022) 37:3. https://doi.org/10.1163/15718085-bja1009
  • Pradeep A. Singh. “What Are the Next Steps for the International Seabed Authority after the Invocation of the ‘Two-year Rule’?” International Journal of Marine and Coastal Law (2022) 37:1. https://doi.org/10.1163/15718085-bja10078
  • Pradeep A. Singh. “The two-year deadline to complete the International Seabed Authority’s Mining Code: Key outstanding matters that still need to be resolved.” Marine Policy (2021) 134. https://doi.org/10.1016/j.marpol.2021.104804

Featured Image: Pradeep Singh by IISD/ENB | Diego Noguera: http://enb.iisd.org/oceans/isa/2020-1/19feb.html