Abstract
The second part of the 25th annual session of the International Seabed Authority (ISA-25 Part 2), including meetings of the ISA Council and Assembly, was held from 15– 26 July 2019 in Kingston, Jamaica, respectively under the gavels of Lumka Yengeni (South Africa) as Council President and Kamina Johnson Smith (Jamaica) as Assembly President. EPL is taking advantage of the lull in international meeting sessions to provide coverage of this meeting, which will potentially be of great importance to the marine environment in future. 1
Following this meeting, work scheduled for the first and second parts of ISA-26 (originally scheduled for February and July of this year) has been rescheduled for October of this year (the Assembly and first and second sessions) or was held remotely in July (Finance Committee sessions). 2 A proposed “High-Level UN Conference to Support the Implementation of SDG 14 (UN Ocean Conference)” originally scheduled to be held in Lisbon in June has also been postponed, with no tentative date yet set. 3
The Primary Task: Exploitation Regulations
The work of the ISA-25 Part 2 sessions focused on one of the primary responsibilities assigned to the ISA under Part XI of the UN Convention on the Law of the Sea (UNCLOS), to wit: the development of draft exploitation regulations on deep-seabed mining. As detailed in UNCLOS Part XI, the seabed of the world’s oceans (beyond the boundaries of nationally claimed jurisdiction over States’ continental shelf areas), which UNCLOS refers to as “the Area”, 4 unequivocally states that “the Area and its resources are the common heritage of mankind”. As such, the Area is not subject to claim by any sovereign, and the governance of the exploitation of its resources is necessarily governed by “the Authority” (UNCLOS’s way of referring to the ISA). In fulfilling this charge, the regulations must walk a fine line – governing future activities in the world’s oceans, while endeavouring to balance stakeholders’ interests against the mandate of ensuring environmental protection in this “last frontier” of discovery on earth.
International interest in deep-ocean mining was particularly high even before the ISA was established. In the era of scientific discovery existing at the time that UNCLOS was adopted (1982), the “polymetallic nodules” (sometimes called manganese nodules, although believed to contain other elements as well) and other deep-sea formations were perceived as presenting a major new source of rare metals and other elements that had become important with the rise of the electronics industries. 5 The ISA was not formally established as an autonomous institution until 1994, 6 and not fully operational until 1996; however, interest continued at a high level, although by then some scientific sources had suggested that, lacking an inexpensive way to bring them up from the abyssal plains, the nodules and other mineral formations might not be the anticipated “mother lode” after all. In light of their undoubted status as a globally shared mineral resource (and recognising how resource values have shifted throughout recent history and estimates of that value vary according to who is stating them and why), the ISA has nevertheless persevered in its task of developing regulations to address these resources and the deep-sea mining activities to obtain them.
Over its 25 years of existence, the ISA has developed a number of regulatory components of what many consider will eventually be a global deep-sea-mining code to regulate prospecting, exploration, and exploitation of marine minerals in the Area, including three bodies of prospecting regulations: Regulations on Prospecting and Exploration for Polymetallic Nodules (adopted on 13 July 2000, updated on 25 July 2013); Regulations on Prospecting and Exploration for Polymetallic Sulphides (adopted on 7 May 2010); and Regulations on Prospecting and Exploration for Cobalt-Rich Ferromanganese Crusts (adopted on 27 July 2012).
Since 2017, it has been tasked with the process of developing exploitation regulations – a difficult charge as it necessitates the establishment of extraction permit procedures; compliance; payment (including assessment and verification); standards of behaviour; and governmental and international oversight, as well as the operationalisation of “the Enterprise” (defined as “the organ of the Authority which shall carry out activities in the Area directly, ... , as well as the transporting, processing and marketing of minerals recovered from the Area”). 7 In the first part of its session, ISA-25 reportedly “made progress on the draft exploitation regulations, addressing, inter alia: standards, guidelines, and terms; decision-making; regional environmental management plans; and the inspection mechanism. It further considered the report on matters relating to the Enterprise, deciding to extend and expand the mandate of the Special Representative for the Enterprise”.
One of the primary tasks of this session was the review of draft exploitation regulations prepared and commented on by the Legal and Technical Commission of the ISA Council (LTC). A number of delegations had made written submissions, and they and others also commented verbally. Some delegations asked for additional time to submit comments. The following are among the points of greatest relevance to EPL’s mandate that were discussed: the need for the regulations to “be in conformity with UNCLOS” and concerns regarding whether and how they will reflect and/or conform to the currently on-going negotiations regarding “biodiversity beyond national jurisdiction”;
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questions regarding the expertise of ISA in these matters and the manner of obtaining access to “external environmental expertise”; whether and how the regulation would discuss environmental protection and/or the roles of fisheries management organisations; the question of whether the regulations should mention the UN Sustainable Development Goals (SDGs), based on the fact that the latter are set to expire well before the regulations will; a call for “open meetings of the LTC to increase transparency and promote progress”; the need for provisions regarding “effective participation of the Enterprise” (through joint ventures); Member State and contractors’ cooperation with the ISA; public participation; and the polluter-pays principle; recognition that the LTC “has a lot to contribute to the regulations”; calling on the body to recall the lessons it had learned in the course of development and adoption of the exploration regulations; and the expectation that the session’s role was “to decide on the way forward”.
Ultimately, regarding the last of these points, the delegates agreed to proceed by discussing the draft regulations on a section-by-section basis, through which they expressed, inter alia, the following particular points of concern (in addition to specific applications of the points mentioned above): suggestions that the regulations specifically define and apply to “all three types of deep-sea minerals: polymetallic nodules, polymetallic sulfides and cobalt-rich ferromanganese crusts”; calls for clarification of the legal nature of each regulation, including by inserting clear references to “legally binding standards” and “non-binding guidelines”; insistence that principles, including the polluter-pays principle, should not be interpreted solely on the basis of “market-based instruments” as well as provisions for specific implementation of that principle through operational planning, environmental bonding, and closure planning; inclusion of a formal “precept to specify reparation and rehabilitation as an environmental obligation” within the regional environmental management plans (REMPs) on which the regulatory implementation will be based; inclusion of “traditional and local knowledge” in decision-making; specific consultation of small island developing States (SIDs) before granting concessions; formally defining or otherwise clarifying the meaning of terms such as “harmful effects” or “serious harm”, as used in the draft regulations; concerns where the draft regulations softened the responsibilities of Member States and/or contractors, calling on them to “use their best endeavours” (or similar language) to meet some standard, rather than directly applying the standard;
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inclusion of specific qualifications of permit applicants based on their “ability to comply with environmental policies” and/or their “economic capacity”; definition of “effective control” in the context of the qualification of a particular sponsored applicant; the respective roles of the Council, the LTC and the ISA Secretary-General, with regard to determination of “preference and priority of applicants”; the inclusion of a requirement that any applicant for an exploitation permit must have obtained an exploration permit; the use of external experts to advise the Commission; the processes for review of EIAs and other environmental submissions; the need to clearly state the criteria, procedures and other standards involved in the application/decision process; clarification on how the process would address questions of “the monopolization of marine activities”; the need for “exploitation guidelines”; the need to operationalise the Economic Planning Commission and to define its role in exploitation and contractual processes; data collection and regular monitoring; incident-reporting; questions of non-compliance; and the relevance of ISA standards.
The above list focuses only on points that were controversial – to the extent that each such matter was not agreed, and in most cases at least one party or group of parties is reported as having opposed the suggestions made. In addition, a number of more general interventions were made, such as, for example, calls for “a general list of elements, without denoting whether they are principles, approaches, or policies” and “a standalone regulation on fundamental principles”, as well as relatively standard interventions on oversight; the avoidance of environmental harm; and the need to promote/mandate transparency, accountability, cooperation, etc. The discussion provided a forum in which countries could reiterate their concerns regarding legal issues, such as reminding each other of the distinction between exploitation of the resources of the area and “marine scientific research” (MSR), in connection to which one delegation (Germany) could reiterate that “MSR is not limited by exclusivity rights”.
One interesting element of the transparency discussion was that it was specifically raised with regard to the application process and the determination of which persons are to be considered as “qualified applicants”. Discussion raised the issue of confidentiality only in the context of the extent to which the Secretariat should circulate all applications to all Member States. In this connection, the delegates also discussed “test mining” and concerns relating to operational planning, social impacts and “impact[s] on the country’s domestic economy resulting from a reduction of mineral resources caused by deep sea mining”. As expected, many of these matters were suggested as areas in need of further study.
One interesting discussion focused on the exploitation contracts that are to be granted under the process. Among other concerns, this discussion included consideration of “concrete ways to incentivize the participation of developing countries, including increasing the maximum initial term of an exploitation contract”. Discussion focused around whether that initial term should be 15 or 30 years, how the ISA would stay informed of the contractor’s work, what would happen in the event of material change, and the need for a new plan of work and/or environmental impact assessment, at the time of renewal.
In these respects, the discussion appeared to take on much of the language and approach of the “benefit-sharing” discussions in the on-going UN negotiations regarding biodiversity in areas beyond national jurisdiction. For example, with regard to the transfer of a contractor’s rights or obligations, in addition to standard contractual discussions of the definitions of “change of ownership”, it is reported that “[t]he African Group suggested taxing the potentially substantial profit to be gained from transfer of rights”, while “Canada questioned the merit of interfering with a ‘commercial decision”’. The delegations also called for clarity regarding the roles of the Convention on Biological Diversity (which intervened to encourage that the regulatory development process refer to its existing voluntary guidelines and other relevant work) and the London Convention and its 1996 Protocol (which regulates discharges into the ocean, potentially including those from deep-sea mining).
The specific discussion of the financial model for payments was more practical in nature, based on a presentation of three options: a fixed-rate royalty mechanism, an ad-valorem only royalty, and a combined profit-based system. The canvassing on this issue also included discussion of options for setting up an environment fund. The discussion of these matters varied widely. While some of the delegates raised general questions of how to provide incentives for “pioneer activities in deep-seabed mining”, others focused on more particular issues: specifically calling for rate-setting discussions and identifying particular issues of relevance to those discussions, specifically asking for assurance that “current modelling is only applied to polymetallic nodules, with other resources considered separately”.
No formal decision was taken on most of the points raised in the review of the draft regulations. 10 Discussion of the way forward was primarily focused on the drafting process itself – with particular concerns regarding the commencement of open meetings of the LTC. Ultimately, the delegates decided to continue discussions on a draft decision related to the report of the LTC Chair in an informal working group, to be facilitated by Australia and New Zealand. 11 The Council also decided to extend the mandate of the working group that was addressing the financial model. 12 The overall deadline for finalisation of the regulations, having been set for 2020, may have been extended for practical reasons.
Other Matters Addressed by ISA-25 Part 2 Decisions
The ISA-25 Part 2 session considered several other matters of potential policy importance.
Membership of the LTC
In addition to (and following) the relatively standard agenda item regarding the appointment of a delegate to fill a vacancy on the LTC, 13 the delegates considered certain questions regarding the manner in which the Commission’s composition and coverage are assured. In addition to the standard priorities relating to regional representation, this discussion apparently focused on the need to ensure that the Commission include relevant expertise in such areas as environmental impacts, marine biology, technology, mining and economics. Throughout the sessions, many delegations had emphasised the need to ensure that the Commission’s work was supported by appropriate technical expertise and that there was an on-going need to create an “Economic and Planning Commission as a separate entity from the LTC”; however, this agenda item allowed the issue to be canvassed most openly. Among the comments it is reported that “India noted that the number of diplomats and lawyers currently in the LTC outweighs the number of scientists”. Additionally, the overall size of the LTC was apparently in question, with one delegation suggesting that it should not have more than 36 members. Ultimately, the Council decided to delay consideration of the issue until the now deferred 26th session, where it was said to have been placed at the top of that meeting’s agenda. It was noted in the meeting that the failure to come to a decision in 2019 would apparently delay the 2021 election of LTC members until 2022. It is not clear whether or how the COVID postponement will affect that scheduling.
Financial Matters
In conjunction with its agenda items on financial and budgetary matters, most discussion focused on delay in the States’ payment of their assessed contributions and the need for and possible character of cost-cutting measures. In addition, under this heading, the delegates took note of a non-paper submitted by Tonga on “the development of rules, regulations, and procedures for equitable benefit sharing”.
National Legislation
Although the ISA’s work focuses solely on one of the most important “areas beyond national jurisdiction”, many States have adopted laws, regulations and administrative measures with respect to activities in the Area and related matters. An updated report on the status of such measures has been a regular output of the Secretariat since 2012. The most current of these reports was presented to ISA-25 Part 2, 14 noting that as of May 2019, 33 States and the Pacific Community had provided information on, or the texts of, relevant national legislation. This year’s report went on to note that “[f]urther information on and the texts of national laws, regulations and administrative measures” is available from the Authority’s online database. 15
Two years ago, the Assembly also requested that the Secretariat prepare “a comparative study of the existing national legislation with a view to deriving common elements therefrom”. 16 That study too has been posted on the ISA website, and is of interest. 17 It discloses that much of the legislation submitted is actually not relevant, in that it does not address “the Area” or responsibilities applicable to it.
The Enterprise
Pending its operationalisation, it has been difficult for the ISA Council and Assembly to agree to the appointment, even as a temporary matter, of an interim Director General, particularly without a full analysis of the financial implications of that decision. Up to now, therefore, the Enterprise has been in the hands of a “Special Representative”, Eden Charles, although numerous developing countries, SIDS and others are pressing for the formal creation of the position, as soon as practicable. Ultimately, the Council decided to extend the mandate of the Special Representative through to the end of the 26th Session (which was expected to be held in 2020). In the draft, this decision was expressly made “subject to the availability of requisite funds”, but that clause was ultimately removed.
The Assembly Session
While mostly supporting and adopting the decisions of the Council, the Assembly also provided further insights into critical issues. For example, it is reported that, in the discussion of workshops for the development of REMPs, “China opined that how these REMPs are dealt with in relation to exploitation remains a question for the Authority”. More than any other reported comment on the REMP processes, this suggests the potential of continuing challenge to the processes and their outputs. In this discussion, too, one of the session’s few references to climate change came up, with the proposal that “experts from the Intergovernmental Panel on Climate Change (IPCC) and the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES)” should be included in REMP workshops.
Much of the Assembly’s discussion focused on the on-going work of developing a high-level action plan and performance indicators. In the course of these discussions, many procedural matters relevant to the draft exploitation regulations could be raised, including calls for a clear deadline for adoption of the exploitation regulations, the need for standards to be completed prior to that adoption, and the prioritisation of open LTC meetings. In this connection, interventions bemoaned the existence of a “vacuum in the implementation” of REMPs; reiterated concerns that, for example, “it is too early to decide on the establishment of a mechanism for engaging consultants with the Authority’s work”; and emphasised the standard calls for capacity-building, participation and transparency. In connection with the latter, some points were raised regarding the need for clarity with regard to the designation and treatment of confidential information and data.
The Assembly adopted the High-Level Action Plan for the period 2019– 2023, in a decision also including a list of performance indicators to enable the ISA to better monitor and analyse progress made under its Strategic Plan. 18
Observer Status
The ISA Assembly also addressed an issue that has been somewhat difficult for many international bodies and processes in the past – the consideration of requests for observer status. The ISA has draft guidelines regarding the granting of observer status to non-governmental organisations, which were also considered under this agenda item. Discussions included unexpected questions, including regarding “the potential conflict of interest ... where there is an application for observer status formulated by a person or persons accredited as a member State in the same session when the application is considered”. While some applications were returned for additional information, the Assembly rejected applications by a private-sector company, on the grounds that it did not “meet the criteria for NGO observer status”, later noting that “the ISA has a ‘higher moral role, being at the core of a sophisticated architecture’, as compared to an organization regulating an industrial sector, like the IMO”, 19 which may have been its justification for not offering observer status to private-sector entities. In the course of discussion of the draft guidelines, it was noted that many of their provisions were ambiguous or incompletely explained. At least one intervention stated that “observer status should include indigenous peoples”. Ultimately, the Assembly approved the guidelines, with the proviso that “it may review them from time to time”. 20
Footnotes
Although not able to attend in person, the author has obtained information on the sessions from three primary sources: (1) Tsioumanis, A., Goldberg, T., Kantai, T. and Wang Yan. 2019. “Summary of the Twenty-fifth Annual Session of the International Seabed Authority (Second Part), 15– 26 July 2019, Kingston, Jamaica”. Earth Negotiations Bulletin 25(207). Online at https://enb.iisd.org/vol25/enb25207e.html; (2) ISA’s official documents of the meetings (online at https://www.isa.org.jm/sessions/25th-session-2019 and 
); and (3) interviews of some persons who attended. Unless otherwise attributed, quotations in this report are from Tsioumanis et al.
As defined in UNCLOS, “the Area” means “seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction” (UNCLOS, Part I, Article 1, section 1(1)). The Area’s “resources” are defined as “all solid, liquid or gaseous mineral resources in situ in the Area at or beneath the seabed, including polymetallic nodules” (UNCLOS, Part IX, Article 133(b)).
Since the 1990s, the presence of other mineral formations in the Area has also been noted, particularly the so-called “ferromanganese crusts”, which contain cobalt, nickel, copper, molybdenum and other rare earth elements. Additionally, “polymetallic sulphides” have been identified, which apparently contain copper, zinc, lead, silver and gold.
Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (New York, 1994).
UNCLOS, Part XI, Article 170.
The most recent sessions of these ongoing negotiations are reported herein at 219–224.
This issue also apparently came up regarding accountability, where “Germany emphasized that accountability and transparency should be ‘ensured’, rather than ‘promoted”’.
UN Doc Symbol ISBA/25/C/37. Among the points of discussion it addressed, the decision called for completion of the standards and guidelines, before adoption of the regulations, called for investigation into concerns raised regarding non-compliance and encouraged the LTC “to hold open meetings more frequently to allow for greater transparency in its work”.
Ibid.
UN Doc Symbol ISBA/25/C/32.
Approving Erasmo Alonso Lara Cabrera (Mexico) to replace Alonso Francisco Martinez Ruiz (Mexico) on the LTC until 2021. UN Doc Symbol ISBA/25/C/23.
UN Doc Symbol ISBA/25/C/24.
UN Doc Symbol ISBA/23/A/13, at §e(3).
UN Doc Symbol ISBA/25/A/6.
The reference to the IMO was perhaps reflecting the fact that the draft guidelines had been based on the IMO’s guidelines, as requested in the original Assembly decision calling for preparation of a discussion draft. There are relatively few other potential models. Tsioumanis et al., supra, note 1, noted that “The Almaty Guidelines on promoting the application in international forums of the principles of the Aarhus Convention (on access to information, public participation in decision-making, and access to justice on environmental matters) had indeed been referenced in last year’s discussion in the Assembly that led to the development of the first draft of the guidelines”.
UN Doc Symbol ISBA/25/A/7.