International Seabed Authority Research Articles

Defining Strategic Environmental Goals and Objectives for the Management of Deep-sea Mining Operations in the Seabed Beyond National Jurisdiction

After the inconclusive second part of the 28th Annual Session of the International Seabed Authority (ISA) in July 2023, there were concerns that the ISA would start accepting exploitation applications for deep-sea mining in the seabed beyond national jurisdiction (the Area) with neither a full regulatory framework in place nor a general policy related to the conservation of our marine environment. Currently, the environmental management of deep-sea mining by the ISA is cursory and lacks strategic aims regarding the preservation of deep-sea ecosystems. This makes the ISA unable to fulfill its environmental stewardship mandate as defined in the United Nations Convention on the Law of the Sea. To overcome this inability, we propose that the ISA defines Strategic Environmental Goals and Objectives by carrying out a Strategic Environmental Assessment of deep-sea mining in the Area, with broader stakeholder engagement and considerations for cumulative and long-term effects. This will allow the ISA to develop the first strategic environmental policy for the Area under its jurisdiction to protect deep-sea ecosystems.

A precautionary tale: Exploring the risks of deep-sea mining

Since the 1970 s, scientists and entrepreneurs have been seeking new opportunities to mine by exploring the deep sea as a viable option. Deep-sea mining was soon seen as an alternative to terrestrial mining, especially for precious materials needed for technology. The International Seabed Authority (ISA) has been tasked with the mandate to govern deep-sea mining within the high seas, including providing exploration permits to countries, as well as eventual exploitation contracts, once such activities commence within the next decade. In this exploratory study, we analyze the levels of international cooperation and other indicators of the 21 countries that have been given permits by the ISA to explore areas for deep-sea mining in the high seas. By examining whether these countries have ratified the 17 major international sea; illegal, unreported, and unregulated fishing; climate; and transnational organized crime conventions; providing a case study of worst performing countries in terms of their ratification status of such conventions; as well as examining the performance of these 21 countries on 18 global risk indicators, this paper finds that, overall, there is lack of commitment among these countries with their international obligations, while they rank moderate-to-high on the 18 global risk indicators. These findings should be a warning sign to the international community, as well as ISA that is responsible for issuing permits for deep-sea mining.

To mine or not to mine the deep seabed?

Several studies have noted that the International Seabed Authority (ISA) scores low on public participation. However, none have studied the efforts of non-governmental organizations to exert influence on the ISA’s rulemaking processes. I examine how environmental NGOs and private mining contractors attempt to sway one narrow, but existential, part of the ISA’s draft exploitation regulations between 2014 and 2019: the definition of “serious harm” to the marine environment. Although environmental NGOs appear to have been more successful in influencing that definition, the interests of private contractors may still prevail. Despite the efforts of environmental NGOs, the term “serious harm” remains largely undefined, allowing for more subjectivity and flexibility in interpretation. This challenge is exacerbated when combined with current institutional weaknesses and limited scientific expertise within the ISA. Ongoing negotiations and recent developments may, however, alter this outcome.

Study on the interpretation and application of the concept of “effective control” by the ISA

The United Nations Convention on the Law of the Sea (UNCLOS) include the term of “effective control” in its sponsorship provisions but do not clarify its meaning. To arrive at a consensus on its connotation, the International Seabed Authority (ISA) began discussions on the concept of “effective control” that have been ongoing since 2014 but have still not yielded any definite conclusion. The interpretation and application of this concept tend to be construed as a regulatory standard in current discussion documents and practices of the ISA, where this allow contractors from developed countries to easily use the method of “sponsoring states of convenience” to apply for and obtain contracts to reserved areas. This is inimical to the goals of effective marine environmental protection and the implementation of preferential treatment for developing countries. The international community should pay attention to this issue and correct the unreasonable tendencies of the ISA in this regard.

Assessment of Stakeholder Options to Participate in Disputes Over Seabed Mining

Exploitative mining in the deep seas is coming, and with it will arrive a new wave of international disputes. Numerous stakeholders will be interested in these disputes, such as those seeking to profit from exploitative mining activity; developing states seeking to benefit from equitable sharing of wealth and lessons learned; and environmentalists all over the world worried about environmental catastrophes that could result from such activity. Stakeholders include the mining contractor, the sponsoring state of the contractor, the International Seabed Authority (ISA) created by the UN Convention on the Law of the Sea (UNCLOS) to control mining activity in the deep seas, states (both states parties to UNCLOS and those that are not) and affected communities, which includes Indigenous peoples and climate activists. However, the dispute settlement system of UNCLOS treats these different stakeholders unequally in terms of whether they may be parties to a dispute proceeding and, if so, what claims they may bring. Unsurprisingly, the system excludes non-states parties and non-state entities (apart from the International Seabed Authority and the contractor), such as Indigenous peoples and climate activists, from serving as parties (claimant or respondent) to a dispute. This essay explores the limited ways in which excluded stakeholders nonetheless may be able to participate in a dispute initiated under UNCLOS. Specifically, they may serve as witnesses, experts, or amicus curiae in proceedings before the International Tribunal for the Law of the Sea (ITLOS), the Seabed Disputes Chamber, or a commercial arbitral tribunal. This essay also advocates for the ISA to establish administrative processes for ongoing monitoring and whistleblower complaints. Such processes would allow excluded stakeholders to submit relevant evidence and information that could—and should—be used in any formal dispute settlement processes initiated by those stakeholders who enjoy direct participatory rights.

Participation of Indigenous Peoples in Decision Making Over Deep-Seabed Mining

In this essay, I reflect on the challenges and opportunities in ensuring the genuine and meaningful participation of Indigenous peoples at the International Seabed Authority (ISA), with a view to giving due consideration to Indigenous peoples’ human rights and integrating their knowledge into international decisions on deep-seabed mining. The essay begins with an assessment of how the current limitations in transparency and public participation in the practice of the ISA1 constitute barriers for the participation of Indigenous peoples. I then argue that existing international human rights obligations require Indigenous peoples’ participation at the ISA and that entry points within the ISA regime already exist to comply with these obligations. I conclude by emphasizing the need to support meaningful participation by Indigenous peoples through social sciences expertise and the involvement of independent international human rights experts, to actively address any biases vis-à-vis Indigenous knowledge.

An Old Dilemma in Deep Seabed Mining: Free, Prior, and Informed Consent of Indigenous Peoples in Areas Beyond National Jurisdiction

Free, prior, and informed consent of Indigenous peoples (prior consent) is a principle of international law that requires states to consult and obtain the consent of Indigenous peoples before projects or legislation that may affect their rights are approved. This principle is applicable to land-based mining projects unfolding in lands titled to Indigenous peoples. The extractive industry's extension to the deep sea is imminent, with the promising but controversial prospect of critical minerals essential for the transition to renewable energy. The application of prior consent in deep seabed mining is open to question because these projects are being developed beyond Indigenous peoples’ territories and the impacts on their rights would primarily manifest indirectly. In this essay, I focus on the current plans to approve the new International Seabed Authority (ISA) mining code and to award grant exploration and exploitation contracts to mining companies. I put forward three arguments for why the consent principle applies to deep seabed mining projects. First, despite being developed outside lands titled to Indigenous peoples, mining projects can affect the rights of Indigenous peoples, and therefore, their consent is required. Second, the prior consent principle is applicable to deep seabed mining as a matter of treaty law under the International Labour Organization Indigenous and Tribal Peoples Convention No. 169. Finally, prior consent has the potential to qualify as a rule of international customary law applicable to the “specially affected states” with Indigenous populations under the United Nations Declaration on the Rights of Indigenous Peoples.

Undermining by Mining? Deep Seabed Mining in Light of International Marine Environmental Law

Some forty years ago, the UN Convention on the Law of the Sea 1982 (UNCLOS) created an unusual regime for states to collectively manage common natural resources on the international seabed beyond national jurisdiction (known as “the Area”) through the International Seabed Authority (ISA). In the intervening years, scientists have increasingly been warning about the serious environmental risks of mining seabed minerals. At this pivotal point in time, when states are negotiating whether or not to allow seabed mining, this essay explores the risk of undermining by mining, that is, contravening international marine environmental law and the obligations and responsibilities of states thereunder by allowing commercial mining activities to commence. We argue that allowing seabed mining in the Area at this juncture, when so much about the deep ocean remains unknown, would risk frustrating a host of measures, achievements, and progress to enhance marine environmental protection, particularly in areas beyond national jurisdiction. We begin with an overview of the ISA and its work to date, before discussing potential interactions between seabed mining and marine environmental law and policies, with a particular focus on the new ocean biodiversity agreement. We conclude by urging states to take cognizance of their overarching duty to protect and preserve the marine environment and ensure that all decisions taken with respect to seabed mining are consistent with their obligations and responsibilities under international law.

The Participatory Scope of the Common Heritage Principle

I have been asked by the symposium editors to write about the participatory scope of the concept of common heritage of humankind for Indigenous peoples, local communities, and future generations. Leaning into the possibilities of the Unbound format, I approach the topic in an athwart way. With a focus on seabed mining, I begin with describing a recent occasion on which Indigenous leaders joined a meeting of the International Seabed Authority (ISA) to discuss the mining regime that is in progress. I tease out the meanings that may be drawn from this instance of participation, including the claims that it made to the ocean as common heritage. Next, I turn to the limits of such participation, given the set parameters of the regime. My overall argument, discussed in the final section, is that the real issue at stake is not the possible conceptual scope of the common heritage principle. Rather, its actualization has been such that the burden is effectively shifted to marginalized voices to seek goals that do not disturb the overarching seabed mining regime.

Self-governance at depth: The international seabed authority and verification culture of the deep-sea mining industry

Deep-sea mining requires the creation of a new set of regulations, mitigation measures, and auditing procedures for the companies operating in this sector. In this article, it is argued that the verification system proposed by the International Seabed Authority, the UN body tasked with policing this industry, fails to respond to the needs for a proactive assessment of environmental impacts. This work proposes that strict, quantitative auditing culture should be re-worked to introduce much needed flexibility to match the fast-paced evolution of deep-sea knowledge. It also highlights some structural limitations of the draft regulations, guidelines, and standards, including vaguely defined terms that could constitute major challenges once the industry enters its production cycle. The current definition of the ISA Mining Code and its related documents promotes a self-regulatory system, where companies operating in the area are wholly responsible for reporting their own adherence to regulations. Based on document analysis, as well as informal exchanges with industry operators, governments, and international organizations, it is found that the bulk of environmental systems knowledge in the mining area has been provided or sponsored by corporate actors, helping them shape the guidelines for the regulations. This self-regulation also extends to the verification process, with few truly independent mechanisms. The article concludes with a proposal of five avenues for improvement, targeting the structures in which verification is envisioned but also the ways in which data is collected.

ПАМЯТИ МИХАИЛА ЕВГЕНЬЕВИЧА МЕЛЬНИКОВА (12.02.1961–29.02.2016)

The article is dedicated to the memory of Mikhail Evgenievich Melnikov, an outstanding researcher of a new type of minerals – cobalt-rich ferromanganese crusts (CFC) of the World Ocean. M. E. Melnikov, scientist and practitioner, Doctor of Geological and Mineralogical Sciences, leading geologist of the State Scientific Center “Yuzhmorgeologiya”, head of the work on the preparation of materials for submission on behalf of the Russian Federation of an Application to the International Seabed Authority (ISA, Authority) for approval of the work plan for exploration of the CFC. The work of the team headed by Mikhail Evgenievich culminated in 2015 with the conclusion between the Authority and the Ministry of Natural Resources and Environment of the Russian Federation of a contract for the exploration of CFC and the receipt of the exclusive right to explore polymetallic ores in the Russian exploration area of cobalt-rich ferromanganese crusts (RRR–CFC), located in the western part of the Pacific ocean on the Magellan Seamounts. Melnikov M. E. headed geological exploration work in the area of the Russian exploration area of KMK, supervising offshore field and office work. The article presents biographical data, highlights the scientific achievements and personal qualities of M. E. Melnikov

Potential risks of developing countries in the process of exploration and extraction of deep-sea mineral resources

<p>Deep sea mining involves the extraction of minerals from the ocean floor. As deep sea mining is a relatively new practice, there is still much to be learned about the technology and the potential risks associated with it by the developing countries. Developing states must ensure that proper safety measures are in place to prevent accidents and minimize the risk of environmental damage. While the potential benefits of deep sea mining are significant, it is essential to ensure that the process is carried out responsibly and sustainably to protect both the environment and local communities. Developing countries face numerous challenges when it comes to actively participating in deep-sea exploration. Some of these challenges include a lack of adequate resources, limited technological capabilities, and limited access to funding. Additionally, developing countries often lack the necessary legal frameworks and regulatory systems to effectively regulate deep-sea exploration, licensing and extraction activities, especially within the continental shelves and the Exclusive Economic Zones (EEZ). These challenges can make it difficult for developing countries to fully participate in this important area of scientific research for a sustainable blue economy. This paper suggests an effective partnership between oceanographic research institutes from developing countries with research institutes from countries like France, Germany, UK, Belgium, Netherlands, China and International seabed Authority (ISA) in deep sea marine scientific research. The paper identifies the need for a joint collaboration for the purpose of acquiring reliable data on the seabed topography, location, shape, coverage, and abundance of deep-sea mineral resources in the continental shelves, exclusive economic zones of developing countries, and area beyond the national jurisdiction. There is also a need to develop legal framework on deep sea policy for sustainable actualization of developing nations’ blue economy.<strong></strong></p>

Mind the gap and close it: Regulating greenhouse gas emissions from deep-sea mining in the Area

Deep-sea mining (DSM) will be highly energy-intensive and produce myriad emissions, including greenhouse gases (GHG). By and large, the emissions arising from DSM activities in areas beyond national jurisdiction (‘The Area’) do not yet fall within the remit of any international agreement and are thus unregulated. To close this gap, two incisive steps need to be taken. First, States must decide under which international regime(s) they want to regulate GHG-emissions from DSM operations (forum choice). Second, they must select the means to mitigate emissions (instrument choice). Forum and instrument choice should be decided in tandem as forum choice tends to influence instrument choice and vice versa. We explore the various possibilities and argue that the International Seabed Authority (ISA) is the most suitable forum, as it could implement a harmonized and targeted approach for this unique sector. We recommend that the ISA commission a technical study to assess the amount of GHG emissions expected to arise from DSM activities in the Area and evaluate the costs and benefits of implementing and enforcing various policy instruments. Such an exercise is both urgently needed and timely, particularly as the ISA is currently formulating the rules for mineral exploitation.

Exploiting the deep seabed for the benefit of humankind: A universal ideology for sustainable resource development or a false necessity?

Abstract A pivotal point in time has been reached in the ongoing negotiations under the auspices of the International Seabed Authority (ISA) towards the adoption of regulations for the commercial exploitation of mineral resources in the deep seabed beyond national jurisdiction. The ISA has a mandate to ensure that activities in the Area, legally designated as ‘common heritage of humankind’, are carried out for the benefit of humankind as a whole. Yet, there is a growing sense of unease with the potential imminence of the commercial exploitation phase, and concern that the implementation of all components of the common heritage principle, including its environmental and distributive ambitions, will be compromised in the interest of a handful of industry stakeholders. This article dives under the surface of these tensions by asking how the public interest in a global commons can become constructed in a way that conflates diverse and opposing interests in favour of value extraction by the private sector, revealing the ambivalent role of international law in the process. It uses the concept of ‘false necessity’ to question the apparent urgency and inevitability of commercial exploitation, more specifically to the extent it obscures and pre-empts more inclusive conceptions of ‘benefit’ for humankind. By shifting the focus from the much-debated risks of deep seabed mining to the notion of benefit, the article illuminates the inherent contradictions and distributional asymmetries obscured by the conflated yet purportedly universal conception of public interest in exploitation.

Sustainable and Just Deep-Sea Mining for the Energy Green Transition: A Conundrum Without Legal, Governance or Technological Solutions. The Case of the EU

In January 2023 the International Seabed Authority (ISA), an intergovernmental organization established under the 1982 UN Convention on the Law of the Sea (UNCLOS) granted already thirty contracts for exploration of Deep Seabed Mining, but exploitation has not started yet because ISA has not finalized its regulations, expected in 2025. This article intends to address to what extent is the current deep Seabed mining regime factoring risks and uncertainties in a just and sustainable manner in the current legal framework on environmental liability embedded in the green energy transition’s processes with the EU as case study and enquiry if there are baseline or best practice to learn from. It unravels which type of precautionary approach fits and is just. Deep Seabed Mining is also a social justice, ethical dilemma demanding equitable and share solutions to the benefit of current and future generations because activities of this kind can destroy ecosystems that can take decades to regenerate, if not causing irreversible damage. Law and technology, but also technology will be crucial as new methods guaranteeing an “environmental benign Deep Seabed Mining” will determine how liability law will be shaped. Deep Seabed Mining Environmental Liability, Precautionary approach; Sustainable Green Transition, Natural Extraction Law, Critical Minerals, Sustainable Development, Sustainable Ocean Law and Governance, Environmental Justice, Deep Seabed Law, Law and Technology

Developing best environmental practice for polymetallic nodule mining - a review of scientific recommendations

Best environmental practice (BEP) is a key component of an ecosystem approach to management and is typically a product of practical experience in established industries. For an emerging activity such as deep seabed mining, no such experience will exist at the time of deciding on the permissibility of the first industrial mines. Therefore, experience from deep ocean scientific experiments and research are important to develop a preliminary understanding of BEP for deep seabed mining. This paper offers a detailed review of the scientific literature from which it identifies elements of preliminary BEP for nodule mining. The paper describes the currently envisaged mining process for manganese nodules and its expected effects on the environment and extracts specific recommendations on how to minimise environmental impacts from mining in different layers of the ocean (benthic, benthopelagic, pelagic, and surface waters) as well as from noise and light impacts. In doing so, the paper aims to inform the Mining Code being developed by the International Seabed Authority (ISA). The ISA is the intergovernmental institution mandated to organise and control seabed mining on the international seabed. The ISA is obligated to ensure effective protection of the marine environment from harm likely to arise from mining, with BEP being a core tool to achieve that. This paper provides suggestions for a future ISA Standard on BEP.

Ecosystem-based Management through the lenses of International Seabed Authority stakeholders: current status, implications, and opportunities for the deep-sea mining regime in the Area

The ocean is threatened by human activities, which undermine the health of its ecosystems. To overcome this scenario, there is a converging understanding that a more encompassing approach, such as Ecosystem-based Management (EBM), is essential to manage human activities. EBM implementation in scenarios of limited knowledge and potentially irreversible impacts, such as deep-sea mining (DSM), is thus highly appropriate, although the translation of this approach into practice is not intuitive and rather challenging. The International Seabed Authority (ISA), the organization with the mandate to award exploration and exploitation contracts for minerals on the international seabed, has recognized the need to incorporate EBM in its instruments but has not specified how to implement it. Through an online survey and in-depth interviews, ISA stakeholders have been inquired about their perception of the understanding, current status, implications, and opportunities of EBM for the deep-sea mining regime. The findings reveal that stakeholders perceive EBM as more related to ecological and impact aspects and less with participation, socio-ecological systems interlinks, and other forms of knowledge that are not scientific. Few respondents recognize EBM within the ISA, reporting its reflection in management instruments such as Regional Environmental Management Plans and Environmental Impact Assessments. No common definition exists, regarded as an obstacle to decision-making and EBM operationalization. According to them, opportunities to improve EBM implementation include collaboration with organizations already familiar with EBM, capacity development activities, workshops, and dedicated side events focusing on the issue. Finally, most of them recognize that a lack of consensus regarding EBM can impact decision-making and EBM operationalization, thus compromising ISA’s mandate. In this context, the clarification on what EBM entails for the seabed mining regime should be a matter of major interest to the ISA and all its stakeholders, as the mineral resources found in the seabed beyond the limits of national jurisdictions (the Area) are the common heritage of humankind, and therefore, its maintenance and benefits must be ensured to future generations.

Sustainable Seabed Mining—The Phase 1 Environmental Draft Standards and Guidelines

Abstract The oceans are home to a rich diversity of plant and animal life and also provide a source of food and marine resources that drive economies. Climate change and pollution are changing ocean dynamics and the ability of the oceans to support life. Seabed mining in areas beyond national jurisdiction will add to the ocean’s stressors and could cause severe environmental damage. The International Seabed Authority (‘ISA’) is mandated to manage access to and benefits from the seabed, its subsoil, and mineral resources in areas beyond national jurisdiction (the ‘Area’). Although the United Nations Convention on the Law of the Sea sets out the legal framework for developing the Area and its resources, it does so in broad terms and leaves substantial gaps. These gaps include the scope of activities in the Area, the interrelationship of international obligations, the division of responsibilities between the ISA and sponsoring states, and the regulation of the mining system in situ. To partially fill these gaps, the ISA has drafted a set of ‘Phase 1’ Standards and Guidelines under the Draft Regulations on Exploitation of Mineral Resources in the Area. This paper investigates and critiques five environmental Draft Standards from a precautionary and comparative law perspective. Phase 1 standards and guidelines should adopt a more rigorous interpretation of the precautionary principle. Additional recommendations include creating enhanced governance processes and incorporating an ecosystem-based framework for regional environmental assessments and management plans not present in Draft Standards. This research will assist academics, practitioners, governments and the ISA with policies and strategies to enhance environmental and social protections from seabed mining.

Perbandingan Ketentuan Pidana Legislasi Nasional Negara Sponsor Eksplorasi Deep-seabed Mining Pada International Seabed Authority : Masukan Bagi Indonesia

National legislation is the requirement established by the International Seabed Authority (ISA) for each country sponsoring Deep-seabed Mining (DSM) and criminal provisions and sanctions are an inseparable part of it. A total of 38 countries are listed as sponsor countries, while Indonesia, with its potential as a maritime country and member of UNCLOS 1982, has not participated in DSM activities. This article aims to explore and compare the criminal provisions in the national legislation of sponsoring countries that have been approved by the ISA so that the formulation of sanctions in Indonesian national legislation can be illustrated in order to prepare Indonesia’s contribution as a sponsoring country for DSM activities in the International Seabed Area. The research method used is normative juridical with a statutory and comparative approach. The research results show that the majority of sponsoring countries in their criminal provisions stipulate criminal sanctions in the form of fines as well as the possibility of imprisonment and several administrative sanctions. Based on the results of this comparative study, it can be concluded that the formulation of sanctions that can be regulated in Indonesian national legislation is a maximum fine of more than 100 billion Rupiah and a maximum prison sentence of not less than 5 years, as well as additional criminal penalties and administrative sanctions in the form of termination or revocation of DSM activity permits, confiscation of profits resulting from illegal DSM acquisition, and compensation for environmental damage caused by DSM activities.

The International Seabed Authority and the United Nations 2030 Agenda for sustainable development

Deep sea mining in the Area (seabed and subsoil beyond national jurisdiction) is regarded by some stakeholders as a threat to the achievement of Goal 14 of the United Nations, 2030 Agenda for sustainable development. However, the availability of metals and mineral resources will be crucial to comply with most Sustainable Development Goals. Despite the need to foster a circular economy and reduce waste to a minimum, it seems unlikely that the decarbonization of the economy could be achieved without primary mining. Future minerals supply, facing significant obstacles, can source from increased primary terrestrial and deep-seabed supply, or deep-seabed displacing terrestrial. This work develops principles and an integrated, holistic framework for deep-seabed mining to play a role in future demand through sustainable global sourcing and collective action on the global commons through the International Seabed Authority. Optimum global welfare requires balancing all the competing uses of the marine environment and their contributions to private and public benefits enjoyed by all Humanity, in both current and future generations, and weighted by equity concerns for a more progressive distribution as required by the United Nations Convention on the Law of the Sea.