The two-year deadline to complete the International Seabed Authority’s Mining Code: Key outstanding matters that still need to be resolved

Abstract

The International Seabed Authority (ISA) is an autonomous international organization established under the UN Convention on the Law of the Sea 1982 (UNCLOS) to organize and control the exploration for and exploitation of seabed mineral resources in areas beyond the limits of national jurisdiction. A system for exploration of mineral resources have been in existence for some time now and the ISA is currently in the midst of developing regulations for exploitation activities. Between 2014 and 2020, the ISA has made considerable progress in respect of the latter. However, with the COVID-19 pandemic, most of the work of the ISA, including the development of regulations for exploitation, have been on hiatus since March 2020. In late June 2021, the Republic of Nauru invoked a legal provision that essentially compels the ISA to accelerate the completion of the exploitation regulations. If the ISA fails to complete this within the prescribed time of two years, i.e. by July 2023, the ISA would have to consider and decide upon applications for mining contracts notwithstanding the absence of the exploitation regulations. Two years is not a long period, especially given that the COVID-19 pandemic continues to prevent member States from meeting in person at the ISA to continue negotiations on the exploitation regulations. Moreover, apart from having to resolve outstanding matters in relation to the exploitation regulations, the ISA would also need to address numerous other matters that intrinsically connect to the design of a functional system of exploitation. This paper reflects upon the key outstanding matters, both within and outside the exploitation regulations, which the ISA would need to urgently address and resolve within the two-year deadline.