In 2023, the International Seabed Authority (ISA), the intergovernmental organization in charge of mineral-related activities in international waters, missed the deadline to finalize and adopt deep seabed mining regulations. The consequence is a governance vacuum whereby the ISA may have to begin evaluating mining applications absent agreed international regulations to protect the marine environment from harmful effects that may arise from deep-seabed-related activities.
The uncertainty continues at the start of this new year. Negotiations to craft comprehensive regulations, started in 2016, have been hampered by the scarcity of scientific knowledge about deep-sea marine life and ecosystems. Because of that, and with the inherent risks of potential mining operations being conducted on the open ocean and minerals extracted more than 3,000 meters below the surface, the ISA was not under pressure to complete the regulations until 2021, when the Republic of Nauru invoked a legal loophole in the UN Convention on the Law of the Sea (UNCLOS). That loophole is known as the “two-year rule” because it required the ISA to attempt to finalize the rules within two years. This set into motion a harried, and ultimately unsuccessful, schedule of meetings and extraordinary sessions meant to complete the regulations.
During its last meeting in November 2023, the ISA Council, the organization’s executive body, committed to continuing to work on creating regulations, with a “view to adopt” in 2025, and stressed that mining should not go ahead in the absence of regulations. However, the Council fell short of closing this dangerous loophole, meaning the threat remains that a company could seek ad hoc approval to mine the deep seabed despite the absence of regulations. At least one mining company has signaled its intent to submit such an application in 2024 and experts and some Member states—among others—have voiced concern that the ISA will prioritize commercial interests over sound decision-making. This could set precedents that undermine UNCLOS and force the ISA and its member States into uncharted territory under international law.
Ultimately, even with the new timeline, it seems highly unlikely that the ISA will be able to finalize comprehensive regulations that will be fit for purpose by 2025. Scientific research published last year highlighted how little experts know about deep sea ecosystems. In a peer-reviewed paper funded by The Pew Charitable Trusts, researchers at the Natural History Museum in London found that there are potentially thousands of species yet to be discovered in the Clarion-Clipperton Zone, a key area of deep-sea mining interest and the site targeted in most existing deep-sea mining exploration contracts.
In addition to critical rules to mitigate potential environmental mining impacts, member countries of the ISA, based in Kingston, Jamaica, also continue to disagree over other fundamental elements of the regulations, such as the type and amount of royalties companies would have to pay the ISA in exchange for mining rights, inspection mechanisms to ensure compliance from companies operating in remote deep sea environments, and a required overhaul of ISA institutional arrangements so that the organization can become an effective regulator.
Against this backdrop, the drive to adopt mining regulations in 2025 not only seems implausible, but increasingly it appears irresponsible. Over two dozen countries are now calling for a precautionary pause or moratorium on deep-sea mining, joining voices from science, civil society, financial bodies and corporations who have all raised concern about potential deep-sea mining activities and urged precaution in the face of the huge uncertainties.
The stakes are high, and the ISA has the opportunity in 2024 to take decisive action to enact a precautionary pause to ensure that no decisions to consider industrial mining activities proceed until comprehensive regulations, informed by science and backed by an effective governance regime, are in place to ensure the protection of the marine environment.
Liz Karan is the director of and Julian Jackson is a senior manager with The Pew Charitable Trusts’ ocean governance project.
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