Andrew Thaler for the DSM Observer
After nearly a month and a half of meetings, including of the Legal and Technical Commission, the Finance Committee, the Council, and the Assembly, the Second part of the 27th Session of the International Seabed Authority came to a close on August 4th, 2022. Though a critical moment for the nascent deep-sea mining industry, the meeting itself brought more questions than answers, with several key issues still outstanding. Unique for the ISA, a third session will be held later this Fall, allowing delegations one last opportunity to bring the Council together before the end of the session. With a deadline to complete the Mining Code looming in Summer 2023, the ISA will need all the time it can muster to deliver a set of regulations for the exploitation of seabed resources beyond national borders.
Though much work remains, this meeting brought several key developments to the forefront and addressed many procedural challenges that were necessary to clear the way for future deliberations.
New Experts Elected to the Legal and Technical Commission Ensure Better Geographic Representation
After a year of protracted discussions, during which time the previous LTC saw their service terms extended during the pandemic, the Authority finally approved a new Legal and Technical Commission which provides for greater geographic representation among its members. The interim procedure was mired in politics, with a late-game push from many delegations to remove the facilitator, a Russian citizen. In a letter submitted to the ISA in April, he stated that that “I regret to have to say that we have all just been wasting our time here,” in response to calls for his removal due to the ongoing invasion of Ukraine.
By expanding the size of the LTC, the Commission now includes individuals from all regional groups. Of the 15 countries (or collectives) that sponsor mining contractors, only the Republic of Nauru, Kiribati, Singapore, and the Cook Islands do not have citizens represented within the LTC. Space still remains for up to seven additional members, including one from the African Group, one from the Asia-Pacific Group, up to three from the Eastern European Group, and up to two from the Latin American and Caribbean Group.
The Legal and Technical Commission reviews applications by deep-sea mining contractors and extends recommendations to approve new exploration and exploitation leases to the Council and Assembly. They also review incident reports and compliance notifications. As the LTC has access to commercially privileged information, unlike the bulk of ISA activities, their meetings and deliberations are not open to the public.
As the Council and Assembly rarely vote against the recommendations of the Legal and Technical Commission, the LTC functionally acts as the deliberative body the determines when and how commercial deep-sea mining will begin.
New Council includes the Republic of Nauru
In addition to a new LTC, 18 member states we elected to the ISA Council, replacing outgoing members at the end of their four-year terms. Several member states were re-elected on the condition that they would relinquish their seat to other member states for a periods of time.
Notably, the Republic of Nauru has secured a place on the Council for 3 years through deals brokered with Fiji and Indonesia. For the upcoming year, Nauru will hold Indonesia’s seat on the ISA Council, and for 2025 and 2026, Fiji will relinquish its seat to Nauru. Nauru does not appear to have a Council seat for 2024. This gives the Republic of Nauru a voice on the ISA Council during the critical year when they anticipate submitting a plan of work for the exploitation of polymetallic nodules in the Clarion-Clipperton Zone through their contractor, Nauru Ocean Resources, Inc, very likely in the absence of a finalized Mining Code.
Likewise, the Netherlands has negotiated with France and Germany to occupy their seats, for one year, respectively. The Netherlands will hold a seat on the Council in 2023 and 2025. Italy, as a matter of form, has an agreement to relinquish its seat to the United States of America if and when the country finally ratifies the UN Convention on the Law of the Sea.
Growing Calls to slow the Mining Code Process are met with Hardened Opposition
Throughout the session, member states continued to assert that they considered the 2-year deadline an artificial imposition and did not view the submission of a plan of work prior to the approval of a Mining Code as an obligation to approve such a plan of work. “The regulations should be based on the precautionary approach which does not allow for artificial deadlines,” intervened the delegation from Belgium. “The likely outcome is that at the end of the 2-year period this will not be done. Legal uncertainty is something we do not need. The stakes for mankind are too high.”
The delegation from France stressed that “it has never interpreted the triggering of the two-year rule in June 2021 to mean obligate the Council to automatically and provisionally agree all work plans that will be submitted beyond that date. France’s priority is to take the time necessary to define this multilateral legal framework, which should be robust and should offer protection. It should be enforceable for all states.”
Others, however, were keener to ensure that the Mining Code be completed within the new timeframe. “Australia respects that in activating the 2-year trigger, Nauru was exercising their rights under international law. There is a considerable amount of work to do on the regulations. Australia is committed to finalize the regulations and associated instruments by July next year. We want to meet the deadlines on 1994 agreement” stated the delegation from Australia.
“Let us continue to work collectively constructively to finalize a world class ISA mining code,” urged the delegation from Nauru. “We have a window of opportunity to support the development of a sector that we consider has the real potential to help accelerate our energy transition to realize financial and other economic benefits for the international community as a whole flowing from the principle of the common heritage of mankind, to contribute to a sustainable development agenda and a sector that is subject to a unique robust oversight mechanism through ISA and sponsoring states.”
The ISA will miss the 2-year Countdown Deadline for a Finalized Mining Code
Perhaps the most significant realization came on the final day of deliberations, as the Secretariat presented the dates for the next meeting of the ISA Assembly, which will occur in late July of 2023. As the supreme organ of the Authority, the Assembly will ultimately vote on the approval of a Mining Code. Throughout the last three weeks, it was clear that the Authority was not yet close to consensus, and that many open questions remain unanswered.
During last week’s Assembly meeting, Chile raised the issue of discussing the legal and technical ramifications of the two-year trigger. Their proposal to add an agenda item to the week’s discussions was pushed down until midweek, when it was ultimately decided that the item would be included in “other matters” on the final half-day of discussion, along with a proposal by Belgium to include mining contractors among observer groups. Citing insufficient time to prepare for such a discussion, the Assembly opted to push such a discussion to the next meeting of and noted that a plan was already in place to host a “what if” discussion at the ISA Council’s November meeting to explore the potential consequences of the two-year countdown.
“Are we willing to be accomplices to the unknown and irreparable damages that deep sea mining might cause,” intervened the delegation from Chile, over the lack of discussion surrounding the implications of the 2-year trigger.
To further confound future deliberations, it was noted that the Republic of Nauru invoked the Trigger on June 25, 2021. Barring exceptional circumstances, the next meeting of the Assembly is scheduled to begin on July 24, 2023, which means that the two-year deadline will have passed a month before the next meeting of the Assembly. Under the current schedule, there is no path forward in which a Mining Code can conceivably be approved before the two-year deadline imposed by the Trigger expires.
“There is a particular responsibility on our shoulders. We know now that the destiny of humanity linked to oceans, to the sustainable development of their resources and absolute requirement of respect for the marine environment. Let us be up to the task that has been given to us,” concluded the delegation from France.
Featured Image: A digital image generated by the DALL-E machine learning algorithm based on the prompt “Sunrise over the island of Nauru.”