Code Project Review and Analysis of the 2018 Draft ISA Exploitation Regulations

Third report of the Code Project

Third Report of the Code Project: Code Project Review and Analysis of the 2018 Draft ISA Exploitation Regulations

This Third Report of the Code Project covers an institutional process that has taken place over the past 18 months: the drafting of the ISA regulations to govern exploitation contracts in the international seabed (the Area).

The characteristics of an ideal ISA exploitation code have been discussed and debated for decades. January 2017–June 2018 is distinctive in that: a) the drafting of the code became an explicit institutional priority; and b) credible drafts were written, critiqued and rewritten. This report summarizes and discusses the most recent draft–an “unedited advance text” released 29 May and entitled “Draft Regulations on Exploitation of Mineral Resources in the Area. Note by the Secretariat” (ISBA/24/LTC/WP.1). It does so within the analytic frame of a document released only seven weeks earlier: the “Statement by the President of the Council on the work of the Council during the first part of the twenty-fourth session” (ISBA/24/C/8), which laid out its commentary in six broad issue notes: 1) the pathway to exploitation and beyond; 2) the payment mechanism; 3) the role of sponsoring States; 4) the role and legal status of standards, recommendations and guidelines; 5) broader environmental policy; and 6) roles of the Council, Secretary-General and Commission in implementation of the regulations.

This Code Project report compares the two documents side by side. What did the Council say about an ISA exploitation code? How did the Secretariat reply in the form of a new draft of that code? The Code Project records and evaluates that documentary conversation and offers suggestions for future iterations.

It would be challenging for the Council to complete a regulation-by-regulation analysis during its next sessions (16-20 July). Notwithstanding, the members of the Code Project believe in the value of such vetting, and–whether matters are discussed this July, next March or in between–they have attempted in this report to describe and evaluate each element of ISA exploitation regulations raised by the Council and Secretariat and offer their views thereon.

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The United Nations Convention on the Law of the Sea (UNCLOS) established the International Seabed Authority (ISA) and invested it with the sole power to govern seabed mining in areas beyond national jurisdiction. Mining on the international ocean floor cannot take place until the ISA approves exploitation regulations, and drafts of those regulations are now under consideration. Final approval is expected in 2020 or 2021. For perhaps the first time in history, a governing body and its member governments have the chance to establish rules for an extractive industry before it begins.

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