Development, Marine Biodiversity, and the Common Heritage of Mankind: The ISA’s Deep Seabed Mining Quandary and Complying with the High Seas BBNJ Convention

Starting July 9, 2023, the International Seabed Authority (ISA), sited in Jamaica, will allow companies to file permit applications for commercial deep seabed mining. In 2021, the Government of Nauru invoked Section 1(15) of the 1994 Implementation Agreement to Part XI of the UN Convention on the Law of the Sea (UNCLOS), which effectively started a 2-year clock for the ISA to elaborate regulatory rules on commercial deep seabed mining.  Failure to meet the deadline would require the ISA to consider and ‘provisionally approve’ an application for commercial exploitation of the deep seabed coming from a Member State to UNCLOS whose national intends to apply for approval of mining exploitation in the Area.  With a population of around 12,000 and a terrestrial area not exceeding 25 square kilometers, Nauru stated in 2021 that Nauru Ocean Resources Inc. (NORI) intended to make this application for deep seabed mining exploitation in the Area.

Section 1(15) does not make it automatic for the ISA to ‘provisionally adopt’ applications for commercial seabed mining exploration licenses.  The full text of this provision requires alignment with the provisions of UNCLOS:

“15. The Authority shall elaborate and adopt, in accordance with article 162, paragraph 2(o)(ii), of the Convention, rules, regulations and procedures based on the principles contained in sections 2, 5, 6, 7 and 8 of this Annex, as well as any additional rules, regulations and procedures necessary to facilitate the approval of plans of work for exploration or exploitation, in accordance with the following subparagraphs:

(a) The Council may undertake such elaboration any time it deems that all or any of such rules, regulations or procedures are required for the conduct of activities in the Area, or when it determines that commercial exploitation is imminent, or at the request of a State whose national intends to apply for approval of a plan of work for exploitation;

(b) If a request is made by a State referred to in subparagraph (a) the Council shall, in accordance with article 162, paragraph 2(o), of the Convention, complete the adoption of such rules, regulations and procedures within two years of the request;

(c) If the Council has not completed the elaboration of the rules, regulations and procedures relating to exploitation within the prescribed time and an application for approval of a plan of work for exploitation is pending, it shall none the less consider and provisionally approve such plan of work based on the provisions of the Convention and any rules, regulations and procedures that the Council may have adopted provisionally, or on the basis of the norms contained in the Convention and the terms and principles contained in this Annex as well as the principle of non-discrimination among contractors.” (Italics added.)

While it has been reported (here) that some kind of ‘environmental impact assessment’ will still be done by the ISA before granting provisional approval of deep seabed mining exploration applications, the absence of uniform procedures on the content, quality, nature, and scope of any such environmental impact assessment (see different methodologies here, here, here, and here, for example) opens up space for the ISA’s administrative discretion to be more outcome-determinative. As other scholars have shown here in EJIL:Talk!, the BBNJ Agreement introduces a much higher standard for EIAs than the current 2019 ISA draft regulations for exploitation of mineral resources in the Area. 

Most importantly, for an international regulatory agency that has been besieged by controversy (here, here, and here, among others), and criticized for its lack of technical and resource capacity to evaluate environmental impacts to the deep seabed (here and here), it has been even more jarring to behold the recent New York Times investigation showing documentary evidence of one mining company’s 15-year courtship of the ISA and receipt of exclusive information since 2007, giving the company a commercial edge in forthcoming mining applications.  There is thus a pending proposal for a moratorium on provisional approvals, authored by Chile, Fiji, Palau, France, and Vanuatu.  The International Union for the Conservation of Nature (IUCN) overwhelmingly voted in favor of demanding the ISA to observe a moratorium on deep seabed mining.

In this post, I argue that “norms contained in the Convention and terms and principles contained in the Annex, as well as the principle of non-discrimination among contractors” should indeed govern the conduct of the ISA in this new phase where consideration and provisional approvals of applications can be made.  However, the legal application of these norms, terms, and principles, in my view, should militate in favor of prudence and precaution, and not a ‘blue rush’ to provisionally approve applications after July 9, 2023.

Defining ‘Norms Contained in the Convention’

“Norms contained in the Convention” do not just exclusively refer to Part XI of UNCLOS, which details provisions on the Area.  Section 2 (Principles Governing the Area) of Part XI familiarly describes how 1) “the Area and its resources are the common heritage of mankind” (Article 136 UNCLOS); 2) “all rights in the resources of the Area are vested in mankind as a whole, on whose behalf the [International Seabed Authority] shall act” (Article 137 para. 1 UNCLOS); 3) “the general conduct of States in relation to the Area shall be in accordance with the provisions of this Part, the principles embodied in the Charter of the United Nations and other rules of international law in the interests of maintaining peace and security and promoting international cooperation and mutual understanding” (Article 138 UNCLOS, Italics added.); 4) State responsibility and international organization responsibility to ensure compliance and responsibility for damage (Article 139 UNCLOS); 5) activities in the Area are to be carried out “for the benefit of mankind as a whole” (Article 140 UNCLOS) and “only for peaceful purposes” (Article 141 UNCLOS), and with “due regard for the rights and legitimate interests of coastal States” (Article 142 UNCLOS).  Most crucially, “effective protection of the marine environment” requires the ISA to adopt appropriate rules for the “prevention, reduction and control of pollution and other hazards to the marine environment, including the coastline, and of interference with the ecological balance of the marine environment, particular attention being paid to the need for protection from harmful effects of such activities as drilling, dredging, excavation, disposal of waste, construction and operation or maintenance of installations, pipelines and other devices related to such activities” and “the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna of the marine environment” (Article 145 UNCLOS).

If the ISA were to issue provisional approvals on a case by casis basis for deep seabed mining exploration after July 9, 2023, absent the official adoption of the Deep Seabed Mining Code, all of the above Part XI principles stand to be openly flouted.  The ISA’s mandate is precisely to ensure the “effective protection of the marine environment” in the Area, including the prevention of pollution and other hazards to the marine environment from exploration activities, noting that the resources of the Area are vested in mankind as a whole as the “common heritage of mankind”.  It is not at all consistent with the principles of the Charter of the United Nations (e.g. Article 1(3) purpose “to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all…” and Article 2(1) on the sovereign equality of all States) that the 2-year period triggered by Nauru result in a wide open door for provisional approvals that are premised on the lowest common denominator of marine environmental impact assessment due to the ISA’s failure to adopt the appropriate regulations in time.  Rather, precisely because the ISA is charged with ensuring effectiveness in its protection of the marine environment and prevention of pollution and hazards to the marine environment especially from exploration activities, the ISA should be minded that it is also based on the principle of the sovereign equality of all its Members [Article 157(3) UNCLOS] and duly consider the technical, scientific, and environmental objections raised by the majority of States, international organizations, and international civil society organizations who voted at the IUCN World Conservation Congress, as well as States such as Chile, Fiji, Vanuatu, Palau, and France who expressly proposed, a moratorium on deep seabed mining until the appropriate regulations have been officially adopted.  How does any haste on the ISA’s discretionary ‘provisional approval’ serve its mandate to observe “effective marine environmental protection” with full respect for the sovereign equality of all States at the ISA?

Moreover, “norms in the Convention” that apply to regulate and control any provisional approvals of deep seabed mining exploration in the 1994 Implementation Agreement also refer to other provisions within UNCLOS.  Part XII (Protection and Preservation of the Marine Environment) provides important context for the ISA to consider in discharging its mandate to ensure “effective” marine environmental protection in the Area.  Articles 193 and 194 of UNCLOS extensively point to the preventive individual and collective duties of States to “prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities” [Article 194(1) UNCLOS] and that all necessary measures are taken ” to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention” [Article 194(2) UNCLOS], with such necessary measures targeted towards “all sources of pollution of the marine environment” [Article 194(3) UNCLOS]. The 2016 South China Sea Arbitration Award (Republic of the Philippines v. People’s Republic of China ,paragraphs 942-948) affirmed the extensiveness of these preventive duties of States when it comes to marine environmental protection and preservation.

Here, the recent BBNJ Agreement (officially known as the draft agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction) is also significant, as it applies to the high seas and the Area [Article 1(4), BBNJ Agreement], and the objective of the BBNJ Agreement is precisely to “ensure the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, for the present and in the long term, through effective implementation of the relevant provisions of the Convention and further international cooperation and coordination.” [Article 2, BBNJ Agreement].  The BBNJ Agreement explicitly adopts the precautionary principle, an ecosystem approach and an integrated approach to ocean management, and the use of the best available scientific information among others [Article 5, paragraphs (d), (e), (f), and (h), BBNJ Agreement].  Proposals for measures such as area-based management tools for marine environmental protected areas are technically and rigorously evaluated, and adopted only under either default consensus decision-making procedures or a two-thirds majority at the Conference of Parties. [Articles 19 and 19bis, BBNJ Agreement].  The same BBNJ Agreement envisages international cooperation, transparency, and coordination with the ISA and other organizations under a clearing-house mechanism [Article 51, BBNJ Agreement].

Additionally, even the concept of “development” originally contemplated in the discussions of resources in the Area in the negotiations of Part XI to UNCLOS should also take into account that there is now a crystallizing right to development (and a pending draft Convention on the Right to Development) that guarantees individuals and peoples the right to participate in, contribute to, and enjoy economic, social, cultural and civil development in a manner that is indivisible from, interrelated and interdependent with, all human rights and fundamental freedoms (and which also subsumes the concept of sustainable development). [Articles 4 and 3(g) of the draft Convention on the Right to Development]. The ISA cannot thus afford to gratuitously interpret “development” so narrowly to just favor the commercial interests of one or a few States or their designated mining companies, even to justify granting a provisional approval at this time, especially when weighed against the overwhelming scientific expertise, State consensus, and international civil society demands for a moratorium on approvals of any deep seabed mining applications, pending the official adoption of appropriate regulations.  The legally prudent course is to wait and discharge its mandate to officially adopt the ISA Deep Seabed Mining Code.

In sum, the above “norms in the Convention” themselves militate in favor of prudence and constraint on the ISA’s regulatory authority to grant provisional approvals of commercial deep seabed mining applications after July 9, 2023.  The heavy burden lies with the ISA to prove that it is discharging its mandate to ensure “effective marine environmental protection” for the “common heritage of mankind” and mindful of the “benefit to the whole of mankind” and the “sovereign equality of all States”, if it were to issue any provisional approval favoring a few, despite the overwhelming objections of the world’s majority due to the precautionary principle and the ecosystem approach to climate change and marine biodiversity, and other relevant environmental treaties subsequent to the 1994 Implementation Agreement that provide relevant context to what “effective marine environmental protection” means at this point in time. 

Lack of Transparency and ISA Regulatory Problems and the “Principle of Non-Discrimination Among Contractors”

The lack of transparency over any ‘provisional approvals’ process, coupled with the above-indicated recent investigative reports showing the ISA’s preferential treatment of one mining company with respect to information access shoring up commercial advantages for mining exploration, is also not consistent with the norms of the Convention, the terms and principles of the 1994 Implementation Agreement, and the principle of non-discrimination among contractors.  The use of the Area is supposed to be “without discrimination” [Article 141 UNCLOS] but the lack of transparency for most of mankind, and the selective access to information reportedly given to a few, certainly violates the non-discrimination principle.  Absent any decisions on the standards, thresholds, and procedures of environmental impact assessment for provisional applications at the ISA, there is also an imminent (if not actual) danger of further discrimination not just as between prospective contractors, but also all other States who may not be putting forward contractors but are themselves supposed to be economic beneficiaries of any resource exploitation in the Area.  The ISA owes its mandate to ensure the “benefit of mankind as a whole” to all States and populations within these States.  Its problematic reported lack of transparency aggravates identified regulatory capacity problems at the ISA, which stands to further entrench discrimination in any provisional approvals process.  When there are no clear operative standards to guide the international regulator and to ensure the legal and accountable exercise of its discretion, the moral hazard here is a free-for-all approach for any and all comers with sufficient influence or lack of arms’ length relationship with regulators to easily obtain provisional approvals for deep seabed mining exploitation activities.

Conclusion: Section 1(15)(c) of the 1994 Implementation Agreement is the gateway for prudence, precaution and constraint against any standard-less ISA provisional approvals process for deep seabed mining 

International law does contain its own solutions.  As shown above, Section 1(15)(c) of the 1994 Implementation Agreement holds the key to constrain any irresponsible floodgates to provisional approvals of deep seabed mining activities, pending the official adoption of appropriate regulations by the ISA.  The same provision of international law also creates the gateway to constrain and govern the regulatory authority of ISA during this period of provisional approval that falls within its remit.  ISA’s jurisdiction to grant provisional approvals is not unlimited, regardless of the triggering of the 2-year rule by the Government of Nauru.  Any prospective grant of provisional approval imposes the burden on the ISA to show that the provisional approval in favor of any company is consistent with the norms of the Convention, the terms and principles of the 1994 Implementation Agreement, and the principle of non-discrimination among contractors.  At this point in time, it is both legally permissible, as well as advisable on international policy, for the ISA not to overstep its limited jurisdiction to grant provisional approvals by ensuring that any such provisional approval is actually compliant with Section 1(15)(c), and thus should be based on the norms of the Convention, the terms and principles of the 1994 Implementation Agreement, as well as the principle of non-discrimination among contractors. The burden is not just on the applicant, but more so on the International Seabed Authority, to establish compliance with these applicable rules of international law.