A year in, progress sluggish on deep-sea mining code

This story was originally published by Hakai Magazine and appears here as part of the Climate Desk collaboration.

The International Seabed Authority (ISA), an independent body in charge of both enabling and regulating deep-sea mining, is facing a stiff deadline to decide the fate of the world’s seafloor. The clock was set just a little over a year ago, in June 2021, when the Republic of Nauru triggered a clause in the ISA’s regulations, known as the two-year rule, that is forcing the ISA to formalize the rules and regulations that will guide the exploitation of minerals in the deep sea by this time next year.

For those investing in this nascent industry — and for those concerned about its rapid development — the past year has seen a flurry of activity. Global Sea Mineral Resources, a mining company, tested a robot to collect deep-sea polymetallic nodules, the fist-sized rocks made of cobalt, manganese, nickel, and copper that have built up over millions of years in the far reaches of the deep sea. The Metals Company signed a memorandum of understanding to develop a nodule-processing plant in India. Meanwhile, Pacific island states such as Palau, Fiji, Samoa, and now the Federated States of Micronesia, have joined an alliance to call for a moratorium on deep-sea mining, while states such as Chile and Costa Rica have called for a precautionary pause.

But for the legislators in charge of finishing the ISA’s Mining Code, the meetings in Jamaica last month with the ISA’s council and assembly show that complex questions about how seabed mining will work still need to be negotiated.

One key matter that’s yet to be resolved is the ISA’s definition of environmental harm. The ISA and its member states are legally obligated through the United Nations Convention on the Law of the Sea (UNCLOS) to ensure the effective protection of the marine environment from harmful effects and serious harm that may arise from deep-sea mining.

While scientific voyages to the deep sea are discovering new species, such as Biremis spaghetti worms and gummy squirrels, scientists say there is not enough data to assess baseline conditions in areas being targeted for mining. There are still major gaps in scientists’ knowledge about the distribution of deep-sea habitats, how deep-sea ecosystems function, and the identities of deep-sea species. Against such a backdrop, defining what level of environmental harm is acceptable is a puzzle that remains to be negotiated by ISA member states.

Scientists’ baseline knowledge of deep-sea ecosystems is not enough to even know how to monitor the harm mining might cause or say what the thresholds of environmental harm are, says Beth Orcutt, a marine biogeochemist at the Bigelow Laboratory for Ocean Sciences in Maine. “Decadal-scale research is needed before mining should be considered.”

Defining a threshold for environmental harm is closely tied to another loose end for those devising the mining code’s exploitation regulations — the question of legal liability, says Pradeep Singh, a legal scholar specializing in the law of the sea at the Institute for Advanced Sustainability Studies in Potsdam, Germany.

“You would hope that the ISA would try to give some clearer indications through standards and guidelines that this is acceptable harm, and this is not acceptable harm, and this is the criteria on how we’re going to evaluate environmental harm,” says Singh. “[These things need] to be agreed upon because if you exceed the levels of harm the ISA sets, liability comes in.” To this point, however, “there’s been very little discussion about legal liability,” says Singh.

One chief concern among those developing the mining code’s exploitation regulations is meeting the lofty goal that deep-sea mining in international waters must benefit all humankind. Written into UNCLOS is the requirement, routinely referred to as the “common heritage of humankind” principle, that the benefits of seabed mining must be shared among all ISA member states. Those drafting the mining code need to figure out a financial regime to make that happen.

An early cost-benefit analysis by researchers at the Massachusetts Institute of Technology estimated that deep-sea mining would generate approximately US$2.93-million over a 30-year period for each ISA member state. But states, including the African Group, which represents 47 nations, argue that the ISA’s current payment regime does not consider the environmental costs of deep-sea mining and does not result in fair compensation to humankind. In particular, the group maintains that countries with economies that depend on land-based mining will be disproportionately affected by the onset of deep-sea mining.

Thembile Elphus Joyini, the vice-chair of the Legal and Technical Commission of the ISA, negotiates on behalf of the African Group in discussions on the financial regime. “We already know that deep seabed mining is going to affect some of our countries,” says Joyini. “Most of our countries’ minerals come from land-based mining, and some of them rely only on mining.”

Last year, the African Group expressed in a submission to the ISA that Nauru’s move to accelerate the ISA’s timeline by triggering the two-year rule is “likely to weaken, rather than facilitate, the development of an effective regime fully embodying the common heritage of mankind principle.”

“Our starting point,” Joyini adds, “is that if deep seabed mining doesn’t demonstrate that it is going to benefit humankind as a whole, then it is not worth supporting or it is not worth starting.”

Given the plethora of issues that still need to be worked out, some states have started referring to the big “what if” lurking over the discussions: what if the regulations are not finalized by the time the ISA’s two-year deadline runs out next summer? What happens then?

“The deadline of two years worries us,” says Joyini. “The African Group has made a lot of submissions. We don’t think the negotiations will be able to address all the issues within two years.”

However, Joyini is careful to clarify that Nauru’s triggering of the ISA’s two-year rule is its right. “What they’re doing is provided for in law,” he says.

But the pressure has some people questioning the certainty of the two-year deadline. In a paper published in July, Singh argued for varying legal interpretations of the two-year rule itself, suggesting that the ISA should not feel pressured to finalize the regulations by the deadline, particularly if it risks putting in place incoherent or incomplete requirements.

While the two-year rule itself was not officially on the ISA’s agenda in the recent meetings in Jamaica, the delegation from Chile put forward a proposal to discuss the issue. Costa Rica argued that, with the exploitation regulations in a “fledgling stage,” “nobody is obliged to do the impossible.” Spain, meanwhile, said the two-year rule was concerning. “The sword of Damocles hangs over us,” said the representative from Spain.

Nauru’s position was to postpone the discussion to the next ISA assembly meetings. While Australia committed to finalize the regulations by July of next year, Belgium and South Africa recommended seeking an advisory opinion from the International Tribunal for the Law of the Sea on the legal uncertainty surrounding the two-year rule.

“I think it’s fair to say that the vast majority of the council members just don’t want to see a shoddy application being rammed down their throats,” says Duncan Currie, a legal adviser to the Deep Sea Conservation Coalition, an organization that holds observer status at the ISA. “It’s a bad look for the International Seabed Authority. And it’s a bad look for the more responsible contractors,” he says.

The ISA declined requests for an interview for this article.