Deep seabed mining: A general policy at the International Seabed Authority?

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Comprising 168 member States, the International Seabed Authority (ISA) is responsible for all seabed mineral exploration and future exploitation activities on the international seabed (‘the Area’). Negotiations on the rules, regulations and procedures for exploitation activities are currently ongoing at the ISA. Before any exploitation activities can commence, UNCLOS requires its member States to first develop necessary rules, regulations and procedures to govern their conduct. The recent invocation of the ‘two-year rule’ provision by Nauru has imposed some pressure on the ISA, resulting in the legal possibility that exploitation activities could soon commence even in the absence of regulations. As a result, more and more States are voicing their concerns about exploitation activities in the Area commencing in the near future.

Background to the proposal to discuss a general policy at the ISA

In mid-2023, a group of five countries (Chile, Costa Rica, France, Palau and Vanuatu) proposed an agenda item for debate at the Assembly. Their proposal, entitled “Establishment of a general policy by the Assembly related to the conservation of the marine environment, including in consideration of the effects of the ‘two-year rule’” and a draft decision that “establishes as part of the Authority’s general policies a precautionary recess of exploitation activities”, was added to a supplementary list for consideration. On the first day of the Assembly meeting, when the adoption of the agenda was discussed, a small number of countries objected to the inclusion of this supplementary agenda item. On the final day, with the entire meeting and other decisions being put at risk due to the absence of an agenda, the agenda was finally adopted without this agenda item. Many delegations lamented that the meeting should not have proceeded without agreement on the agenda in the first place.

Not surprisingly, a renewed proposal was made in April 2024 to include an agenda item for the establishment of a general policy at the upcoming meeting of the Assembly. This time, the following differences can be observed:

1. While the five original countries from the 2023 proposal have remained as proponents, they are now joined by four other countries: Brazil, Germany, Ireland and Switzerland.

2. This time, the proposal to include the agenda item was made well in advance. As a result, the item has now been included in the provisional agenda of the Assembly (item 16).

3. The title of the proposal is now “A general policy of the Authority for the protection and preservation of the marine environment” and there is no draft decision enclosed. Additionally, there is no mention of a recess and no reference to the ‘two-year rule’.

Procedure and process: What to recall from 2023 and what to expect in 2024

The adoption of the provisional agenda and the proposed items in a supplementary list caused quite a bit of a stir at the last Assembly meeting in 2023. One interpretation was that agenda items, while routinely adopted as a whole, must be agreed upon individually (in cases where there are objections). Another interpretation was that agenda items, whether on the provisional list or supplementary list, should be treated as one and accepted as a whole, while allowing for member states to subsequently call for a vote and in deciding to amend or delete any of the individual items.

A close reading of the Rules of Procedure of the Assembly suggests that the latter argument might be more convincing. Rule 9 provides that the Secretary-General shall draw up the provisional agenda of the Assembly at least sixty days before the opening of the session. Under rule 10(e), in drawing up the provisional agenda, the Secretary-General must include “items proposed by any member of the Assembly”. Rule 11 allows any member of the Assembly, the Council or the Secretary-General to “request the inclusion of supplementary items in the agenda”, provided this is done at least 30 days in advance of the opening of the session, and this will be placed in a supplementary list. Under the heading “adoption of the agenda”, Rule 18 stipulates that “the provisional agenda and the supplementary list shall be submitted to the Assembly for approval as soon as possible after the opening of the session”. Rule 19 then prescribes that agenda items “may be amended or deleted by the Assembly by a majority of the members of the Assembly present and voting”.

Putting these provisions together, it would appear that if there are objections to a proposed item, be it in the provisional agenda or on the supplementary list, a vote could be called not to challenge their inclusion but rather to call for their deletion or amendment. Such an interpretation draws support from Rule 12, which deals with other “items of an important and urgent character, proposed for inclusion in the agenda less than thirty days before the opening of a regular session”. In those cases, proposed items are to be considered individually and “may be placed on the agenda if the Assembly so decides by a majority of [members] present and voting”.

In terms of the process for the establishment of an ISA general policy, the Assembly clearly has the powers to do so pursuant to Article 160(1) of UNCLOS. However, as per Section 3(1) to the Annex of the 1994 Agreement on the Implementation of Part XI of UNCLOS, the ISA general policies “shall be established by the Assembly in collaboration with the Council”. In practice, general instruments like the ISA’s Strategic Plan or High-Level Action Plan were previously adopted by the Assembly without any prior consultation with the Council.

One of the procedural objections made in 2023 was that the development of a general policy must be done “in collaboration with the Council”. The argument was that it is the Council that should first consider the need for the establishment of such a general policy, which means that raising this at the Assembly would be premature until the Council recommends this to the Assembly. With respect, such an interpretation might contradict UNCLOS, which gives the Assembly the power to establish the general policies of the ISA. A more persuasive argument is that the Assembly first determines the need for a general policy before inviting the Council to collaborate and jointly develop it. Here, there exists ample ground for collaboration. In July 2023, the Council adopted two important decisions (ISBA/28/C/24 and ISBA/28/C/25) to the effect that commercial exploitation should not commence in the absence of regulations and emphasized the need to take appropriate measures to ensure the effective protection of the marine environment from mining before these activities commence. Given the unanimous agreement there, the Assembly would simply need to work together with the Council to further consolidate that agreed position through a general policy.

Next steps

The proposal could benefit from some degree of early socializing of the proposal. The possibility of organizing an intersessional webinar open to all member states and observers should also be explored so that delegates can prepare for the debate ahead of the Assembly meeting. In terms of anticipating how the debate may proceed, it might already be prudent to consider how such a general policy could be practically developed, should the Assembly decide that establishing one is necessary. In this respect, it would be necessary to agree – through an Assembly decision – on a mechanism to develop this general policy, which will presumably be carried out intersessionally. Indeed, the ISA has in recent years made progress on its deliverables through intersessional work, such as workshops to develop REMPs, expert groups to develop environmental thresholds, and the informal dialogue on the ‘two-year rule’.

Given the requirement to develop general policies in collaboration with the Council, the creation of a joint working group or contact group comprising some Council members and Assembly members is conceivable. As the Council meets more frequently than the Assembly, the Council can monitor the progress of this working group. Ideally, such a draft will be open to public comment, endorsed and accompanied by necessary recommendations from the Council, and presented to the Assembly at its next meeting in 2025 for consideration with a view to adoption.

Conclusion

The need to establish an ISA overarching strategy for the protection and preservation of the marine environment from the harmful effects of mining activities is not something novel and has been ongoing for some years. At a workshop co-hosted by Germany and the ISA in Berlin in 2017 called “Towards an environmental management strategy for the Area”, participants were supportive of the idea of further elaborating the ISA’s environmental responsibilities through an overarching environmental policy to be developed and agreed to by member states.

Moreover, the Council has taken steps in the past to develop “specific policies” of the ISA for the protection of the marine environment, i.e. through the establishment of the regional environmental management plan (REMP) for the Clarion Clipperton Zone. An ISA Assembly general policy could set overarching environmental ambitions that the Council can then rely on to develop and implement region-specific instruments like REMPs. Likewise, an ISA general policy could ensure coherence with efforts undertaken through other global processes, including the Kunming-Montreal Global Biodiversity Framework and the newly adopted BBNJ Agreement.

A general policy on the protection and preservation of the marine environment can deliver on two widely shared positions among many ISA member states: first, that commercial exploitation should not commence in the absence of regulations, and second, that any regulations and standards must be robust, informed by science, as well as be environmentally effective, stringent and enforceable before member states decide to adopt them and approve any exploitation application thereunder.

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