In 2021, the island nation of Nauru triggered a treaty provision known as the “two-year rule” that obliges the International Seabed Authority (ISA) to finalize and adopt regulations for deep seabed mining within 24 months. That “deadline” expired on 9 July 2023 and the Authority now finds itself in a new phase fraught with legal uncertainty and political controversy. Following the lapsing of the deadline, an application for exploitation activities can now be submitted to the Authority for consideration – and can be provisionally approved – in the absence of the very regulations intended to govern their conduct and ensure compliance.
In a newly published discussion paper, RIFS Fellow Pradeep Singh explores the new reality faced by the Authority and considers the pathways open to member states at this critical juncture. In explaining what is actually at stake – namely, the risk of “unregulated mining” – he observes that the member states of the Authority would expose themselves to litigation if they decide to allow mining to commence in the absence of an adequate regulatory framework. Under the United Nations Convention on the Law of the Sea and related agreements, ISA member states are obliged to develop and adopt regulations governing deep seabed mining in international waters. Allowing mining to commence ahead of this, he argues, would flagrantly disregard their responsibility to ensure the effective protection of the marine environment from the harmful effects of mining activities.
In his discussion paper, Singh juxtaposes around 40 provisions in the Law of the Sea and the 1994 Implementing Agreement that anticipate the existence of regulations prior to the commencement of mining with a single provision in the 1994 Implementing Agreement known as the “two-year rule”, which offers a narrow exception for mining to proceed in the absence of regulations. The RIFS Fellow and expert on ocean governance argues that any provision that goes against the norm should be interpreted in the most restrictive manner possible. Indeed, all treaty provisions must be given effect to in good faith and that select provisions should not be given priority over others. In short, if member states are not ready for mining activities to commence – especially in the absence of regulations – they can just say “no”.
The discussion paper recommends that the ISA member states take concrete steps to consolidate the decision taken by the Council in March 2022 to delay commercial exploitation in the absence of regulations. In particular, the member states should consider issuing directives and guidelines to ISA’s Legal and Technical Commission to ensure that mining applications are rejected by default under the current circumstances – unless of course, member states believe that such applications should be approved. This is important because in allowing mining to occur in the absence of regulations, member states will expose themselves to indeterminate and heightened legal liability without first having met their responsibilities under international law (which member states fulfill through the adoption of stringent regulations). Singh concludes that the Authority should take pre-emptive measures to safeguard itself from any potential liability and notes that the responsibility of the Authority to act on behalf of and for the benefit of humankind as a whole, should far outweigh any individual or self-serving interest to carry out mining in the absence of regulations.
Singh P. (2023): “A ‘deadline’ expires: Quo vadis, International Seabed Authority” - RIFS Discussion Paper, July 2023.