Summary report, 18–29 March 2024

1st Part of the 29th Annual Session of the International Seabed Authority

Environmental externalities. Underwater cultural heritage. Test mining. Equalization measures. Effective control. Regional environmental management plans. Compliance committee. Environmental compensation fund. Royalties. Safety measures. The list goes on. New elements continue to be added to the already complex and interlinked group of elements that International Seabed Authority (ISA) Council members need to agree on to advance in the negotiations on the exploitation regulations for deep-sea mining.

Over the last few years, the prospect of commercial deep-sea mining has generated environmental and socio-economic concerns, which keep growing. In this context, the work of the ISA as regulator of the seabed, ocean floor, and subsoil thereof, and its mineral resources comes into the spotlight.

Those fostering a prompt adoption of the commercial mining regulations point towards a needed worldwide energy transition and the supply of nickel, manganese, cobalt, or copper resources to achieve a net-zero-emission world. All these elements can be found in the polymetallic nodules found in the deep-seabed.

In contrast, 25 states to date have joined the call for a moratorium or precautionary pause on deep-sea mining. They stress the need to effectively protect the ocean, which is already facing overfishing, acidification, pollution, biodiversity loss, and climate change, among other challenges. They also call for acquiring sufficient scientific evidence on the unknown deep-sea ecosystems prior to permanently destroying them.

The Gordian knot-like challenge of balancing the regulations for commercially exploiting the deep seabed, which is the common heritage of humankind, while delivering benefits for all and ensuring the effective protection of the marine environment is not likely to be solved in the coming months.

Progress was made, however, during the two weeks of the first part of the 29th session of the ISA Council, which was primarily devoted to continuing work on the exploitation regulations.

For the first time, the Council’s negotiations were based on a consolidated text containing all the draft regulations. Delegates noted progress in the negotiations under both working groups and thematic consultations. Council members managed to discuss one-third of the draft regulations contained in the consolidated text. Deliberations on several outstanding issues will continue through member-led intersessional working groups.

The Working Group on the environment discussed conceptual views on: the environmental compensation fund; test mining; environmental impact assessments and the environmental impact statement; and regional environmental management plans.

The Working Group on institutional matters focused its discussions on effective control. The Working Group on financial issues discussed conceptual issues regarding the use of incentives; royalty payments; profit share in the case of transfer of rights; and environmental externalities and ecosystem valuation.

Thematic consultations were conducted on equalization measures, the compliance committee under the inspection mechanism, and intangible underwater cultural heritage.

A Council discussion took place on the right to protest in the high seas and the contractor’s right to conduct authorized activities in the area. This discussion arose from an incident in the NORI-D contract area in the Clarion Clipperton Zone involving a Greenpeace protest in December 2023.

The ISA Council convened for the first part of its 29th session from 18-29 March 2024, in Kingston, Jamaica, attracting more than 190 delegates and observers, including representatives from 34 of the 36 Council members.

A Brief History of the ISA

The 1982 UN Convention on the Law of the Sea (UNCLOS), which entered into force on 16 November 1994, sets forth the rights and obligations of states regarding the use of the ocean, its resources, and the protection of the marine and coastal environment. UNCLOS established that the Area (the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction) and its resources are the common heritage of humankind. Rwanda became the newest party in May 2023 bringing the total number of members to 169.

Polymetallic nodules were detected for the first time on the deep seabed by the HMS Challenger expedition in 1873. They are distributed on the surface or half-buried across the seabed, principally in the Clarion-Clipperton Zone in the Pacific Ocean. They contain nickel, copper, cobalt, and manganese, among other metals. Additional minerals have since been discovered in the Area: cobalt-rich ferromanganese crusts, which are mineral accumulations on seamounts that contain cobalt, nickel, copper, molybdenum, and rare earth elements; and polymetallic sulphides, which are formed through chemical reactions around hydrothermal vent sites, and contain copper, zinc, lead, silver, and gold.

Under the common heritage regime, UNCLOS provides that:

  • no state can claim or exercise sovereignty or sovereign rights over any part of the Area or its resources;
  • activities in the Area must be carried out for the benefit of humankind as a whole, irrespective of the geographical location of states, taking into particular consideration developing states’ interests and needs;
  • the Area and its resources are open to use exclusively for peaceful purposes by all states, whether coastal or land-locked, without discrimination; and
  • financial and other economic benefits derived from activities in the Area must be equitably shared, on a non-discriminatory basis.

To address certain difficulties raised by developed countries with the UNCLOS regime for the Area, the 1994 Implementing Agreement was adopted on 28 July 1994 and entered into force on 28 July 1996. The Agreement addresses fiscal arrangements and costs to state parties, institutional arrangements, the ISA decision-making mechanisms, and future amendments.

The ISA is an autonomous institution established under UNCLOS Part XI and the 1994 Implementing Agreement to organize and control activities in the Area, particularly with a view to administering the resources of the Area. The ISA, based in Kingston, Jamaica, was established on 16 November 1994 and became fully operational in 1996. Among other things, the ISA is mandated to provide for the necessary measures to ensure the effective protection of the marine environment from harmful effects that may arise from mining activities in the Area.

All UNCLOS parties are ipso facto ISA members. The ISA organs include the Assembly, the Council, the Finance Committee, the Legal and Technical Commission (LTC), and the Secretariat. The Assembly consists of all ISA members and has the power to:

  • establish general policies;
  • set the budgets of the ISA;
  • approve the rules, regulations, and procedures governing prospecting, exploration, and exploitation activities in the Area, following their adoption by the Council; and
  • examine annual reports by the Secretary-General on the work of the ISA, which provides an opportunity for members to comment and make relevant proposals.

The Council consists of 36 members elected by the Assembly, representing:

  • state parties that are major consumers or net importers of the commodities produced from the categories of minerals to be derived from the Area (Group A);
  • state parties that made the largest investments in preparation for, and in the conduct of, activities in the Area, either directly or through their nationals (Group B);
  • state parties that are major net exporters of the categories of minerals to be derived from the Area, including at least two developing states whose exports of such minerals have a substantial bearing upon their economies (Group C);
  • developing state parties, representing special interests (Group D); and
  • members elected according to the principle of equitable geographical distribution in the Council as a whole (Group E).

The Council is mandated to establish specific policies in conformity with UNCLOS and the general policies set by the Assembly, and to supervise and coordinate implementation of the Area regime.

The LTC is comprised of 41 members elected by the Council on the basis of personal qualifications relevant to the exploration, exploitation, and processing of mineral resources, oceanography, and economic and/or legal matters relating to ocean mining. The LTC reviews applications for plans of work, supervises exploration or mining activities, assesses the environmental impact of such activities, and provides advice to the Assembly and Council on all matters relating to exploration and exploitation.

The ISA has been developing a Mining Code, which is a set of rules, regulations, and procedures to regulate prospecting, exploration, and exploitation of marine minerals in the Area. To date, the ISA has issued: 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). The ISA is in the process of developing exploitation regulations.

Recent ISA Sessions

25th Session: The 25th session of the ISA was held in two parts in February-March and July 2019. The Council made progress on the draft exploitation regulations, addressing, inter alia: standards, guidelines, and terms; decision-making; regional environmental management plans (REMPs); and the inspection mechanism. At the end of the second part, Council members requested more time to submit comments on the draft regulations to ensure a balance between commercial interests and environmental protection.

The Council further considered a report on matters relating to the Enterprise, deciding to extend and expand the mandate of the Special Representative of the Secretary-General of the ISA for the Enterprise for a limited time. At the July meeting, which marked the ISA’s 25th anniversary, the Assembly oversaw the operationalization of the ISA’s first Strategic Plan, with delegates also deliberating on enhancing participation and transparency through the admission of observers.

26th Session: The 26th session of the ISA convened in two parts over two years due to the COVID-19 pandemic. The Council met for two sessions (17-21 February 2020 and 6-10 December 2021). The Assembly met from 13-15 December 2021. The Council continued its work on the draft exploitation regulations, discussing, among others, a proposal for the development, approval, and review of REMPs and a proposal for minimum requirements for such plans.

The Council further approved: the plan of work for exploration for polymetallic nodules submitted by Blue Minerals Jamaica Ltd.; and the application for extension of the contracts for exploration for polymetallic nodules by JSC Yuzhmorgeologiya, the Interoceanmetal Joint Organization, Deep Ocean Resources Development Co. Ltd., China Ocean Mineral Resources Research and Development Association, Institut français de recherche pour l’exploitation de la mer, the Federal Institute for Geosciences and Natural Resources of Germany, and the Government of the Republic of Korea.

The Assembly re-elected Michael Lodge as Secretary-General of the ISA for a four-year term (2021-2024), approved the budget for the period 2021-2022, and took other finance-related decisions, including appointing Ernst and Young as auditor for the financial period 2021-2022.

27th Session: The 27th session of the ISA was split into three parts in March, July, and November 2022. Throughout three meetings, the Council continued negotiations of the draft exploitation regulations.

At its first meeting, the Council agreed to consider a draft to operationalize the Enterprise at the next Council session. At its second meeting, the Council: approved a memorandum of understanding between the ISA and the African Union; and adopted a decision on the mechanism of the election of LTC members for 2023-2027, among others. At its third meeting, the Council adopted decisions related to: the reports of the Chair of the LTC; the commissioning by the Secretariat of a study on the internalization of environmental costs of exploitation activities in the Area; the development of binding environmental threshold values; and the possible scenarios and any other pertinent legal considerations in connection with section 1, paragraph 15, of the annex to the 1994 Implementing Agreement.

During the Assembly session in July, members adopted, among others, decisions on: the approval of the budget for the financial period 2023-2024 in the amount of USD 22,256,000, as proposed by the Secretary-General; the election to fill the vacancies on the Council; and the implementation of a programmatic approach to capacity development.

28th Session (First Part): The first part of the 28th session convened from 16-31 March 2023, preceded by the LTC meeting from 7-15 March.

Council Members continued negotiating the draft exploitation regulations; addressed the possible scenarios and any other pertinent legal considerations in connection with section 1, paragraph 15, of the annex to the 1994 Implementing Agreement, the so call “two-year rule”; reviewed and adopted the LTC report; considered matters about the Enterprise and the status of contracts for exploration and related issues; and discussed on the operationalization of the Economic Planning Commission. The Council agreed on further intersessional work, including by the establishment of several informal groups.

The Council adopted decisions on: the establishment of the position of an interim director general of the Enterprise; the understanding and application of the two-year rule; and the report on the work of the LTC at the first part of the 28th session.

28th Session (Second Part): The second part of the 28th session in 2023 included meetings of the LTC (28 June-7 July), the Finance Committee (5-7 July), the Council (10-21 July), and the Assembly (24-28 July). The Council continued the negotiations on the draft exploitation regulations, and adopted decisions on: the understanding and application of the two-year rule; and the timeline following the expiration of the two-year period.

The Assembly struggled to agree on the meeting’s agenda regarding the addition of two suggested supplementary agenda items: the establishment of a general policy by the Assembly related to the conservation of the marine environment; and terms of reference for the periodic review of the international regime of the Area pursuant to UNCLOS Article 154 (periodic review).

The Assembly decided to include the periodic review as an agenda item for its 29th session in 2024 and to extend the current Strategic Plan 2019-2023 by two years. The proposal on a general policy on the protection of the marine environment will be resubmitted by the proponents for consideration at the 29th session.

28th Session (Third Part): The third part of the 28th session included a Council meeting from 30 October to 8 November of 2023. The Council continued the negotiations on the draft exploitation regulations, following the roadmap adopted at its July 2023 meeting. The deliberations maintained the previously used structure around four working groups on: the protection and preservation of the marine environment; inspection, compliance, and enforcement; financial terms of a contract; and institutional matters. Delegates noted progress under all working groups and encouraged intersessional work.

The Council agreed that the President would work on a consolidated text as the basis for the following discussions. Several modalities for intersessional work were agreed upon.

The Council adopted a decision recalling its request to the LTC to hold open meetings, where appropriate, and requesting the LTC to: annually name those contractors that have responded insufficiently, incompletely, or failed to respond regarding their contractual obligations; clarify the LTC criteria for using the silence procedure; and recommend further improvement for transparency measures while maintaining effective operation and ensuring data and information confidentiality. The Council further requested the Secretary-General to continue to pursue dialogue with contractors who have not yet submitted public templates on their plans of work.

ISA-29 Council (Part I) Report

On Monday, 18 March, Juan José González Mijares, Mexico, President of the 28th annual session, opened the first part of the Council meeting of the 29th annual session of the ISA. He highlighted the consolidated document of the exploitation regulations as a basis for continuing the negotiations. He informed the Council that Tonga relinquished its position on the Council for 2024 in favor of Nauru.

ISA Secretary-General Michael Lodge noted significant progress during the 28th session in 2023 and underlined that adopting the exploitation regulations is the common objective. He considered the consolidated text a milestone, providing the opportunity to identify areas for further work. He emphasized that a strong regulatory framework would give certainty to the legal regime, uphold the integrity of UNCLOS and the 1994 Agreement, and constitute the best guarantee for the protection of the marine environment.

Spain, on behalf of the EUROPEAN UNION (EU), reiterated their full solidarity with Ukraine and strongly condemned the “unprovoked and unjust war of aggression” of the Russian Federation. He emphasized that the EU would continue providing the needed support for as long as necessary.

The RUSSIAN FEDERATION reiterated its position regarding the war in Ukraine and cautioned that the ISA is not the proper forum for such discussions and should not be politicized.

BRAZIL, highlighting its commitment to gender equality, announced Leticia Carvalho’s candidature for the position of Secretary-General. She outlined Carvalho’s long trajectory on ocean governance and the law of the sea, marine spatial planning, and marine pollution, among other ocean-related topics. She noted Carvalho will be attending the session, and invited all members to engage with her.

COSTA RICA, highlighting the precautionary approach, emphasized UNCLOS’s obligation to take every needed measure to ensure the effective protection of the marine environment from the harmful effects that might arise from activities in the Area. Stressing the need for a transparent organization with decisions driven by members, he cautioned the Secretariat against using different language for ISA’s mission than the one approved by the Assembly on ISA’s Strategic Plan.

GERMANY, CHILE, and others expressed concerns with the consolidated text, including the lack of consensus on any provision; the inconsistencies in the inclusion of received proposals; and some of the working groups’ outcomes were not appropriately reflected. Supported by FRANCE, COSTA RICA, AUSTRALIA, THE NETHERLANDS, and others, they opposed working modalities for informal informals and restricting observers’ participation.

CHILE queried the nature and scope of the “suspense document,” which includes elements removed from the draft exploitation regulations to be relocated under appropriate standards and guidelines.

FRANCE stressed the consolidated text is open for negotiation and that nothing is agreed until everything is agreed. He underscored the need for transparency and full observer participation, emphasizing that while informal meetings can be useful, the process is not mature enough to envisage such modalities.

CHINA welcomed the consolidated text and noted that discussing priority issues in informal groups can improve efficiency and advance the negotiations.

AUSTRALIA noted observers’ valuable contributions during intersessional work on equalization measures, adding that practices of other processes or bodies should not set a standard for their participation.

NAURU appreciated the progress during the intersessional period and stressed that the consolidated text provides a balanced approach for constructive negotiations.

INDIA welcomed the consolidated text and stressed the importance of equality of treatment, environmental protection, and the development of environmentally sound technologies.

ARGENTINA recalled the Council decision during the 28th session on the way forward on the development of the regulations and welcomed intersessional work. He stressed the need to address environmental and financial aspects of the Mining Code both in plenary and in informal informals.

PORTUGAL stressed the ocean’s vital role cannot be taken for granted and called for the use of precaution in every decision that might affect it. She pointed out that any decision at ISA will affect the future of humanity, inviting members to consider that when establishing deadlines for the negotiations.

INDONESIA underscored the need for an outcome that strikes a balance between development and environmental preservation, noting the need to bolster ISA’s strategic position.

TRINIDAD AND TOBAGO noted the consolidated text will assist in streamlining ISA’s work, and ensure the development and adoption of a robust set of rules, regulations and procedures (RRPs) before exploitation begins.

JAMAICA, BANGLADESH, and others said the consolidated text and accompanying documents can provide the basis to continue negotiations, noting that members preserve the right to bring new issues into the discussion. JAMAICA highlighted progress during the 28th session as a testament of “what we can achieve as we intensify our commitment to protect the common heritage of humankind.”

DENMARK announced its support for a precautionary pause on deep-sea mining. She stressed no deep-sea mining should take place before strong and robust RRPs, which ensure adequate environmental protection, are in place and sufficient scientific understanding of the negative impacts of deep-sea mining activities is generated to inform decisions.

The RUSSIAN FEDERATION and CHINA drew attention to the decision by the US to unilaterally establish the outer limits of its extended continental shelf, without approval by the Commission on the Limits of the Continental Shelf (CLCS). Lamenting that such decisions focus on established rights but neglect relevant obligations, the RUSSIAN FEDERATION emphasized that the US unilaterally laid claim to one million square kilometers, noting that such actions are at odds with UNCLOS and present a threat to the common heritage regime. He reminded delegates that the only internationally recognized procedure for the establishment of outer limits is via UNCLOS Article 76 (definition of the continent shelf) and through the recommendations of the CLCS, urging the US to ratify UNCLOS.

The US replied that the process was in accordance with relevant UNCLOS provisions, and scientific and technical advice from the CLCS, pointing towards a package of information to be submitted to the CLCS.

Eden Charles, Interim Director-General of the Enterprise, stressed that working through informal discussions is consistent with approaches used in other multilateral negotiations. He reminded delegates that “we are not engaging in a treaty-making exercise” as the exploitation regulations will be subsidiary to UNCLOS and the 1994 Agreement. He noted that the suspense document is an opportunity to revisit certain provisions and retain elements pivotal in the development of the regulations, stating that details should be included under standards and guidelines.

OCEANS NORTH, on behalf of the Deep-Sea Conservation Coalition (DSCC), the Environmental Justice Foundation, Greenpeace International, The Ocean Foundation, and WWF, welcomed Brazil’s announcement on Leticia Carvalho’s candidature for Secretary-General. She drew attention to new coral reefs and seamounts found in the Atlantic and Pacific Oceans. She highlighted that in a long-lost mining test site from the 1970s on the US East Coast, scientists found no recovery from the perturbance even after 50 years. She pointed to a recent analysis revealing that the demand for metals found in the seabed is decreasing and that they are unnecessary to transition towards sustainable energy practices. She invited members to join the call for a moratorium or precautionary pause, and to reject the consolidated text in its current form and the use of informal informals.

After a Hawaiian oli (chant) inviting the ancestors to help everyone in these negotiations, GREENPEACE urged for the inclusion of Indigenous Peoples and local communities in the deliberations, particularly related to underwater cultural heritage.

The International Union for Conservation of Nature (IUCN) stressed that full participation is needed at the current stage of negotiations, emphasizing that discussions on humankind’s common heritage need to be inclusive and transparent.

Organizational Matters

Election of Officers: On Monday, 18 March, GERMANY, coordinator of the Western European and Others Group (WEOG), noted that the group is still consulting on the nomination of a new Council President. COSTA RICA urged for a timely nomination.

Interim President Mijares said that, according to the Council rules of procedure, he will hold office until his successor is elected. He explained the procedure for the election of four Vice-Presidents so that all regional groups are represented, noting that Vice-Presidents are eligible for reelection.

Uganda for the African Group, India for Asia-Pacific, and Canada for WEOG were elected as Vice-Presidents for the 29th session, with a representative of the Eastern European Group pending, together with the President’s election.

BRAZIL and CHILE queried why the Latin American and Caribbean Group (GRULAC) does not have a Vice-President. ISA Legal Counsel Mariana Durney explained that the Vice-President from GRULAC may only take office when the new President is elected.

On Thursday, 21 March, GERMANY, on behalf of WEOG presented Olav Myklebust (Norway), as the group’s nominee for the President of the 29th ISA session. Council members elected him by acclamation.

President Myklebust thanked outgoing President Mijares for his hard work and commitment. Noting he has been attending ISA meetings for 26 years, he stated that 2024 “is the most important year for the ISA and the Council until now.”

Trinidad and Tobago, on behalf of GRULAC, nominated Brazil as Vice-President, who was elected by acclamation.

Adoption of the Agenda: On Monday, 18 March, Interim President Mijares introduced the agenda (ISBA/29/C/1). COSTA RICA and CHILE expressed concerns about the indicative programme of work, in particular holding informal informals, stressing that such working modalities had not been approved by the Council. They noted agreement is still distant on many issues, suggesting holding thematic discussions, with full observer participation, according to already agreed modalities. BRAZIL emphasized working modalities need to be agreed before starting substantive discussions on the consolidated text. He added that the working groups should decide when discussions are mature enough to move to informal informals.

Interim President Mijares noted the working modalities will be discussed under the agenda item on the consideration, with a view to adoption, of the draft exploitation regulations. The agenda was adopted with no further comments.

Elections to Fill a Vacancy in the LTC: On Monday, 18 March, Interim President Mijares introduced the relevant document (ISBA/29/C/3). He noted that, following the resignation of LTC member Adolfo Maestro González (Spain), on 29 January 2024, María Gómez Ballesteros (Spain) was nominated to fill the vacant seat. The Council elected Ballesteros as an LTC member.

Credentials: On Thursday, 28 March, Secretary-General Lodge presented the credentials report, noting 29 states submitted formal credentials, and five states submitted related information. The Council took note of the report.

Status of Contracts for Exploration: On Thursday, 28 March, President Myklebust introduced the relevant documents (ISBA/29/C/5 and ISBA/29/C/8). Council members took note of the reports and adopted the recommendation of issuing the five-year periodic review report template as an official reporting template for contractors to use in preparing their periodic review reports.

Cooperation with Other Relevant Organizations: On Thursday, 28 March, President Myklebust introduced the memorandum of understanding (MoU) between the ISA and the Food and Agriculture Organization of the United Nations (FAO) (ISBA/29/C/2).

Several members expressed their support. The Council took note of the report and approved the MoU.

Report of the Chair of the LTC

Delegates addressed the report of the LTC Chair on Monday, 18 March, and Thursday, 28 March.

On Monday, Sissel Eriksen (Norway), Vice-Chair of the LTC, presented the report on the work of the Commission at the first part of its 29th session (ISBA/29/C/7), held from 4-15 March 2024. She noted, among other things, that the LTC:

  • welcomed as an official document the draft reporting template developed to assist contractors in submitting their five-year periodic review report;
  • adopted criteria for identifying contractors at risk of non-compliance, and modalities for exchanging views with contractors, noting that such exchange of views would be at the Commission’s behest, on a case-by-case basis, and would remain informal;
  • highlighted that a draft regulation on the certification of origin for minerals derived from the Area is now proposed for the Council’s consideration;
  • selected ten experts per subgroup for the development of environmental threshold values;
  • revised and completed, on a provisional basis, the standardized procedure for developing, establishing, and reviewing REMPs and a template with minimum requirements; and
  • endorsed the workplan for the strategic roadmap to leverage data for the implementation of the ISA action plan for marine scientific research for the period 2023-2028.

On Thursday, 28 March, many delegates congratulated the LTC for its hard work and progress, in particular on: contractors’ training programmes; developing criteria for identifying non-compliant contractors or those at risk of non-compliance; environmental threshold values; and the development of a standardized procedure for REMPs, including a template of minimum requirements.

NAURU, SPAIN, INDIA, MEXICO, ARGENTINA, BELGIUM, BANGLADESH, GERMANY, CAMEROON, BRAZIL, PORTUGAL, COSTA RICA, and others welcomed the training programmes, with particular emphasis on the Women in Deep Sea Research Project and the opportunities for developing countries.

NAURU, MEXICO, BRAZIL, the UK, FRANCE, BELGIUM, GERMANY, and others welcomed the adoption of criteria for identifying contractors that have responded insufficiently, incompletely or failed to respond to issues identified by the Commission. COSTA RICA stressed that the LTC does not have the power to adopt such criteria. Pointing to UNCLOS Article 163 (organs of the Council), he highlighted that the formulated criteria shall be submitted to the Council for approval. ITALY and COSTA RICA reiterated that the Council should be informed of the names of contractors who fail to comply with their obligations.

Many welcomed work towards the development of environmental threshold values. CANADA requested the LTC to provide the procedure for selecting candidates. CHINA noted that the draft proposal should be presented by the end of 2024. COSTA RICA noted that the Council requested the LTC to develop strategic objectives and goals in 2019, adding that they are essential for developing the thresholds. COSTA RICA, GERMANY, BRAZIL, SWITZERLAND, and others supported by the DEEP OCEAN STEWARDSHIP INITIATIVE (DOSI), DSCC and the PEW CHARITABLE TRUSTS, reiterated the request to the LTC to hold open meetings on developing environmental thresholds, further reminding delegates that additional thresholds need to be considered.

On the development of a standardized procedure for the development, establishment, and review of REMPs, SPAIN, MEXICO, PORTUGAL, BANGLADESH, BELGIUM, the UK, NORWAY, BRAZIL, COSTA RICA, and DOSI welcomed the progress. CHINA noted that a standardized approach will help ensure uniformity in the preparation of REMPs. COSTA RICA called for open LTC meetings on REMPs.

On modalities for facilitating an exchange of views between contractors and LTC members, BELGIUM noted that informal exchanges should be at the request of the LTC on a case-by-case basis, suggesting keeping a “healthy distance.” The PEW CHARITABLE TRUSTS queried whether similar arrangements will be made for exchange of views between the LTC and observer groups.

SPAIN and COSTA RICA supported the draft decision on the certification of origin. COSTA RICA emphasized that such a decision on traceability could be helpful for companies that have indicated that they will not use minerals from the Area.

INDIA noted that they shall respond to the LTC’s clarification request regarding the two applications they submitted for approval of plans of work for exploration in due course.

Report of the Secretary-General on Cooperation with the OSPAR Commission

On Thursday, 28 March, Secretary-General Lodge presented his report (ISBA/29/C/6) on the status of consultations with the Commission of the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention). Discussions focused on the OSPAR Commission’s decision to extend the scope of the North Atlantic Current and Evlanov Sea basin marine protected area over the Area.

CHINA, ARGENTINA, and others stressed that the ISA’s mandate must be strictly respected by the entire international community. They stressed that decisions of regional organizations are only applicable to their matters and suggested that the Secretariat report back on its coordination with the OSPAR Commission at the July meeting.

CHINA emphasized seabed protection should not be achieved by extending OSPAR’s responsibilities but through the extension of REMPs in the Area. He emphasized that all organizations should respect others’ mandates when drafting measures and making recommendations.

INDONESIA expressed concerns over polarization of the debate on deep-sea mining, presenting the ISA Secretariat as pro-mining and other organizations as pro-environment, stressing that maintaining the integrity of UNCLOS is a shared responsibility.

SPAIN, FRANCE, NORWAY, GERMANY, BELGIUM, the UK, CHILE, the NETHERLANDS, DENMARK, PORTUGAL, IRELAND, SWITZERLAND, and FINLAND stressed the ISA and OSPAR have clear mandates, which sometimes have complementary competencies, including in areas beyond national jurisdiction. They underscored that any OSPAR decision is only binding to its contracting parties and emphasized that the 2010 MoU between ISA and OSPAR offers the necessary framework for cooperation. The Council took note of the report.

GREENPEACE and DSCC stressed that ISA has an exclusive mandate to issue contracts for activities in the Area, not for controlling states’ activities or setting environmental protection. Noting that ISA does not exist in isolation, they called for a more cooperative attitude. They drew attention to a memorandum sent by the ISA Secretariat to the Convention on Migratory Species of Wild Animals (CMS) Secretariat contesting scientific evidence on the effects of deep-sea mining on migratory species. They noted that, in the end, CMS COP14 urged its parties not to engage in or support deep-sea exploitation activities until sufficient and robust scientific information has been obtained to ensure they do not harm migratory species.

Secretary-General Lodge noted that cooperation between the ISA and OSPAR had taken place at a technical level and that the MoU gave the two organizations mutual observer status. He noted cooperation and consultations will continue, subject to resource availability, adding that relevant updates will be provided.

Report of the Secretary-General on Incidents in the NORI-D Contract Area

On Friday, 22 March, the Council discussed the incidents in the NORI-D contract area in the Clarion Clipperton Zone based on the Secretary-General’s report (ISBA /29/C/4/Rev.1).

In November 2023, the ISA received information from Nauru Ocean Resources Inc (NORI) concerning Greenpeace’s conduct, alleging they interfered with NORI’s vessel activities, conducted in partnership with TOML (Tonga Offshore Mining Limited), in the NORI-D Contract Area. Secretary-General Lodge issued immediate temporary measures, in accordance with regulation 33 (emergency orders) of the regulations on prospecting and exploration for polymetallic nodules in the Area, including maintaining a safety distance from NORI’s vessel of at least 500 meters.

Secretary-General Lodge also invited the Netherlands, as the flag state of the Greenpeace vessel, to consider “any necessary regulatory steps.” The Netherlands brought the situation to the competent Amsterdam District Court, which ruled that “Greenpeace may continue its actions around a ship in the Pacific but must instruct its activists to immediately abandon the ship on which they are entrenched.” Greenpeace then reportedly ceased its interference with NORI’s exploration activities.

In the Council’s discussion, NAURU, the sponsoring state of NORI, acknowledged the right to protest at sea under international law, pointing out that it does not grant a license to ignore and disregard the sovereign and contractual rights of others. Stating Greenpeace’s actions were unsafe and non-peaceful and running “entirely contrary to the ISA’s objective and mandate,” she suggested reviewing Greenpeace’s observer status. She underscored the pressing need to ensure actions are taken to prevent future obstruction of activities in the Area and to protect human life and safety. She requested the Council to consider adopting a decision establishing a safety zone of up to 500 meters around vessels and installations conducting activities in the Area.

The NETHERLANDS stated that the right to protest at sea must be exercised in a peaceful manner, without compromising safety at sea and with due regard for the interests of other states. He outlined the decision of the Amsterdam District Court, noting that it instructed Greenpeace to leave the vessel with immediate effect while dismissing wider limitations on the right to protest, including the immediate measure issued by the Secretary-General. He stated that given the protest posed no danger to the marine environment, the immediate measures promulgated by the Secretary-General were not in conformity with regulation 33, and the issuance of immediate measures constituted an excess of jurisdiction or a misuse of power.

He also referred to the findings of the investigation carried out by the Dutch maritime authorities concerning matters relating to safety at sea, highlighting that the Inspectorate: found no legal basis for prescribing and maintaining a safety or operating zone of 500 meters around the NORI vessel; noted the safety of navigation was not compromised and the maneuvers would not qualify as dangerous or unlawful; and noted that the presence of Greenpeace activists in kayaks at the stern of NORI vessels created no safety hazards. He concluded that the Council does not have to take any additional action.

The RUSSIAN FEDERATION said the incident violated the contractor’s right to pursue its legitimate interests, including gathering environmental data. He stressed that the Secretary-General’s response was within his purview and was “practical and reasonable under the circumstances.” He emphasized the need to provide safety and security at sea, noting this negative experience shows the importance of establishing safety zones around contractors’ operating vessels and installations in the Area.

CHINA noted that while the right to peaceful protest should be respected and protected, protestors need to safeguard public safety and not infringe on others’ rights and freedoms. He emphasized that the contractor was engaging in legitimate activities, exercising its exclusive right for exploration under UNCLOS. He underscored that the Secretary-General’s actions to take necessary interim measures are not only legitimate, but also an imperative duty, according to UNCLOS Article 153 (system of exploration and exploitation). He added that stationary vessels may be regarded as installations, adding that Nauru’s proposal for a safety zone is highly constructive and will ensure safety.

TONGA expressed serious concern about the protest, which caused safety risks, noting they support the right to peaceful protest. She urged ensuring protection of human life, while allowing contractors to carry out their legitimate activities.

FIJI expressed concerns about the lack of legal provisions to protect contractors’ rights when conducting approved activities in the Area, noting it exposes them and sponsoring states to future risks. He added that establishing safety zones around ships or installations is justified for safety purposes and said discussions should continue.

SPAIN drew attention to a resolution by the committee of maritime security of the International Maritime Organization (IMO) on the need to ensure safety in protests or conflicts in the high seas, condemning actions that would intentionally place under threat the environment, people, or assets. He noted that the freedom of the high seas is not absolute and added that the Secretary-General acted in good faith to protect activities in the Area, according to UNCLOS Articles 153 and 157 (nature and fundamental principles of the ISA). He suggested requesting the LTC to consider vessels carrying out activities in the Area as installations and provide them the same level of protection.

The REPUBLIC OF KOREA stressed that UNCLOS Article 147 (accommodation of activities in the Area and in the marine environment) sets the framework for activities in the Area, noting they shall be carried out with reasonable regard for other activities in the marine environment. He invited the Secretary-General to continue taking necessary measures to ensure effective protection of human life and safety in the Area.

JAPAN supported the right to peaceful protest, stressing that contractors’ rights should be respected and protected at all times, particularly from any external interference.

INDONESIA stated the legitimate rights of exploration contractors in accordance with UNCLOS and the right to peaceful protest at sea are not mutually exclusive. He noted that monitoring provisions in the regulations can be used to ensure balance of interests between the ISA, contractors, and non-state entities.

Zimbabwe, on behalf of the AFRICAN GROUP, underscored the need to respect UNCLOS provisions, particularly on peaceful uses of the seas, ocean, and the Area. He stressed, with UGANDA, ZAMBIA, and GHANA, delivering aligned interventions, that the contractor was conducting legitimate activities under the exploration contract.

INDIA emphasized the need for guidelines on keeping appropriate distance from installations and vessels to ensure safety and security at sea.

SINGAPORE stressed the need to avoid unlawful interference with legitimate activities in the Area. She requested clarifications on the legal basis for the Council to establish a safety zone applying by default to all vessels.

NORWAY supported the right to protest at sea as long as it does not constitute a risk to maritime safety and respects other activities, noting it is vital to adhere to the competencies of relevant organizations and agreements, flag states, and UNCLOS.

MEXICO called for the development of a balanced regulatory regime for the activities taking place in the marine environment. He supported establishing a code of conduct, taking into account obligations under other international organizations, including the IMO.

BRAZIL stressed the issue is complex and involves other international instruments such as the IMO, noting collaboration is important. She underscored that, prior to adopting any measures, the implications for all stakeholders need to be clarified.

COSTA RICA, GERMANY, CHILE, and others supported the analysis on regulation 33 provided by the Netherlands, stressing the protest posed no risk of harm to the marine environment. FRANCE, CHILE, COSTA RICA, SPAIN, and others argued that the Council is not the appropriate forum for such discussions, in particular for commenting on court decisions of other countries and jurisdictions.

COSTA RICA pointed out that UNCLOS allows the establishment of safety zones for installations on a case-by-case basis, but not for vessels. CHILE emphasized the Council is not authorized and does not have jurisdiction to establish safety zones around vessels operating in the Area, adding that such measures are not contained in UNCLOS. GERMANY welcomed the development of an ISA code of conduct to deal with such cases.

FRANCE and ITALY underscored that the protest was peaceful and highlighted the right to protest. ITALY emphasized that the protest was inspired by the desire to draw attention to impacts of deep-sea mining, and supported the need to increase public awareness about activities in the Area. He supported that some level of nuisance through civilian protest must be tolerated with due regard to the interests of others.

The UK recognized the right of peaceful protest at sea, respecting safety rules. She cautioned against establishing safety zones around vessels, noting they are not provided for under UNCLOS. TRINIDAD AND TOBAGO fully supported the right of any entity to protest.

PORTUGAL noted the temporary measures applied by the Secretary-General were based on a first impression, adding that no information was provided to substantiate serious harm to the marine environment that those measures aimed to prevent.

BELGIUM and IRELAND strongly advocated for the right of peaceful protest at sea, which is contained in UNCLOS. BELGIUM and DENMARK stressed ISA is not the proper forum to adopt measures such as safety zones, which fall under IMO’s remit, with BELGIUM expressing doubts that safety zones around ships are in accordance with UNCLOS. IRELAND pointed that, as the Court decision notes, reasonable tolerance of nuisance from civilian protest should be expected, and stressed that, during the protest, no risk of serious harm to the marine environment was identified.

GREENPEACE highlighted that protests at sea have been recognized as a lawful use of the high seas by international courts, rejecting allegations its protest was unsafe, non-peaceful, and endangered human life at sea. She clarified that activists train extensively to conduct protests safely, and assume any associated risk to protect the global commons. She rejected that the kayaks used could pose an immediate threat of serious harm to the marine environment, and stressed the immediate measures were entirely inappropriate. She noted that creating mandatory safety zones should serve safety purposes, such as preventing collisions rather than protests. She stated that Greenpeace’s observer status is indisputable.

Many observers added their voices to Greenpeace’s position.

DSCC reiterated that the establishment of a precautionary pause or moratorium is the safest way to ensure the effective protection of the marine environment. TE IPUKAREA SOCIETY stressed that the prior informed consent of Indigenous Peoples of the Pacific has not been obtained for deep-sea mining activities.

THE OCEAN FOUNDATION emphasized that protests at sea are the boldest, bravest manifestation of opposition to deep-sea mining, showing that public opposition is mounting outside negotiation settings. WWF urged all parties to uphold the fundamental human right to peaceful protest.

IUCN highlighted that a clean, healthy, and sustainable deep sea is not solely an environmental requirement but also a human right that should be respected and defended. The ENVIRONMENTAL JUSTICE FOUNDATION added that two UN Special Rapporteurs on human rights have expressed serious doubts about the legal basis for requesting the establishment of a 500-meter safety zone around vessels.

The SUSTAINABLE OCEAN ALLIANCE stressed that outrage is usually directed at those who speak out against injustices rather than at those who commit injustices and create risks. The PEW CHARITABLE FUNDS underlined that UNCLOS neither gives ISA legal power nor competence to issue a safety zone around an exploration vessel nor jurisdiction to set rules on how third parties operate. He highlighted that measures to control ships’ actions are within IMO’s jurisdiction and under the flag state regime.

The Council took note of the Secretary-General’s report.

Consideration, with a View to Adoption, of the Draft Regulations on Exploitation

Open-ended Working Group on the Financial Terms of a Contract: The working group met from Monday to Wednesday, 18-20 March. It addressed issues on policies and principles, relevant draft regulations, and environmental externalities. It also held a thematic discussion on equalization measures.

On Monday, Working Group Chair Olav Myklebust (Norway) opened the 10th session, inviting delegates to discuss issues on policy and principles rather than engaging in a drafting exercise. He suggested focusing on:

  • use of incentives;
  • the principles to govern the review of royalty payments;
  • the commencement of commercial production;
  • profit share in cases of transfer of rights;
  • the role of the economic and planning commission; and
  • environmental externalities, ecosystem valuation, and whether it is possible and desirable to internalize them in the financial model.

Members initiated discussions on the use of incentives (regulation 63), including on whether equality of treatment (regulation 62) can be understood as a kind of incentive. They further reflected on the principles to govern the review of royalty payments, including the system of payments and relevant modalities, and initiated deliberations on the commencement of commercial production.

On the review of the payment mechanism (regulation 81) and the review of the system of payments (regulation 82), a member described a review model tied to the commencement of commercial production. A delegate queried the options for the contractor in cases where, following a review of the payment system, it is no longer profitable to continue the activities. Others noted that the issue of environmental externalities is still up for discussion and added that language on reviewing the system of payments in accordance with “observed environmental impacts” needs clarification.

On Tuesday, delegates resumed Monday’s discussions on equality of treatment (regulation 62) and incentives (regulation 63).

Some members queried whether non-financial incentives can be included according to UNCLOS and, if so, the nature of such incentives. Some delegates stressed that, according to UNCLOS, both financial and non-financial incentives can be provided. A regional group said that financial incentives can only be provided for the purpose of the Enterprise and technology transfer. A member queried whether non-financial incentives would include exemptions or preferential treatment, and if so, under what conditions.

A member stressed that technology transfer should be an obligation, further adding that it does not guarantee capacity building and has to be accompanied by personnel training. Another noted that training should be mandatory but not technology transfer.

On the issue of the commencement of commercial production (regulation 27), a member provided an overview of a proposal submitted at the 28th session last year. He emphasized that the period of commencement of commercial production should be based on the maintenance of a certain level of production capacity for a specific number of days, in accordance with the applicable standard, suggesting 60% of the initial capacity for 90 consecutive days. Noting the suggestion is derived from the practices in land-based mining, he added that 90 days may be generous. He further underscored that any failure of the contractor to comply with this regulation and the applicable standard may be considered under the general anti-avoidance rule, and other applicable ISA RRPs.

A few members supported including detailed provisions on the commencement of production under relevant standards and guidelines, suggesting using 80% of the initial capacity for 90 days as threshold. A delegate queried whether a contractor may try to take advantage of the threshold, keeping production levels below it to delay the commencement of commercial production and the payment of royalties. Another queried whether a provision on notification of coastal states regarding the commencement of commercial production should be retained.

A participant suggested deleting a provision noting that contractors and the Enterprise shall make “reasonable efforts” to bring each mining area into commercial production, noting it is open to interpretation and could lead to subjectivity.

On the transfer of rights and obligations under an exploitation contract (regulation 23), with a particular focus on the transfer of profit share, delegates discussed a provision on providing prior written consent for the transfer of rights, with a member suggesting referring to “decision” rather than “consent” and others proposing deleting or relocating the provision.

Noting that transfer of profit share is a common practice in land-based mining, a Council member explained a joint proposal to include high-level provisions on the transfer of profit share, accompanied by an operational standard for direct and indirect transfer of exploration and exploitation rights pertaining to a specified resource category in the Area. Several members supported the proposal.

Some delegates stressed that ISA should receive a share in the case of transfers of profit shares. A delegate suggested providing ISA with tools to prevent any types of monopolies. A member, opposed by others, cautioned against overburdening contractors and discouraging legitimate transfers. Discussions further addressed links with domestic taxation; the origin of the mandate or power of the ISA to receive these profit shares; and the relationship between profit shares and royalties.

Further explaining the proposal for the transfer of profit share, a member drew attention to UNCLOS Article 140 (benefit of humankind), containing reference to “other economic benefits,” and Article 13 of Annex III (financial terms of contracts), stressing they provide the legal basis for a provision on the transfer of profit share. He added that many jurisdictions have measures to avoid double taxation. He clarified that property rights are not considered part of the value of a contract when determining the profit share, agreeing on the need to clearly define “profit.”

On books, records, and samples (regulation 39), delegates expressed divergent opinions on bookkeeping containing information on revenue and liabilities. A member, opposed by a regional group, noted that there is no legal basis for disclosing revenue. A couple of delegates, opposed by others, suggested removing reference to liabilities.

On a provision regarding keeping books, accounts, and records at a place mutually agreed, and available for inspection, a regional group and some members suggested retaining it as a standalone provision, opposing suggestions to move it under standards.

On a provision noting that the contractor shall keep a representative portion of samples “to the extent practical,” a delegate suggested removing “to the extent practical,” with another proposing that such samples be retained until the satisfactory implementation of the closure plan. An observer queried whether reference to the ISA data and information management policy is appropriate.

On audit by the ISA (regulation 75), delegates discussed whether the Council or the Secretary-General should appoint an independent auditor. A couple of delegates stressed that the auditor should be appointed by the Council or through the compliance committee, once established.

Delegates further discussed the potential need for inspectors to assist independent auditors in performing their functions in relation to liability for royalty payment. They concluded that such details would have to be finalized once there is a better overview of the overall inspection and compliance system.

On assessment by the ISA (regulation 76), discussions focused on the process for assessing any royalty liability. Delegates exchanged views on a provision where the Secretary-General is expected to reconsider and either affirm, revise, or revoke the assessment following a relevant request by the contractor. Some delegates requested clarifications. Chair Myklebust suggested further work to streamline the regulation.

On the annual fixed fee (regulation 85), members agreed that it should be paid to the ISA from the date of commencement of commercial production in a contract area. A member proposed a broader reference to “any royalty or other amount payable” under the regulations.

On the interest on unpaid royalty (regulation 79), a member suggested adding a penalty in case of non-payment. Some members suggested deleting regulation 80 on monetary penalties, noting it is already addressed under regulation 103 (compliance notice, suspension, and termination of exploitation contract).

On Wednesday, Chair Myklebust invited delegates to revisit pending issues from Tuesday’s session. On the transfer of rights and obligations under an exploitation contract (regulation 23), delegates agreed on draft text on prior written consent for the transfer of rights, including that the sponsoring state cannot unreasonably withhold such consent and that the Council’s consent is also required based on the LTC recommendations. On the transfer of profit share, some delegates noted divergent interpretations, suggesting further discussions. The two relevant provisions were kept in brackets.

On the commencement of commercial production (regulation 27), members agreed to retain a provision on the efforts to bring each mining area into commercial production. They further agreed to streamlined text that sets a threshold for the commencement of commercial production and addresses cases of non-compliance. Chair Myklebust noted that details will be placed under the relevant standard.

Secretary-General Lodge explained the three types of fees contained in Part VIII of the draft exploitation regulations (annual, administrative, and other applicable fees). He outlined:

  • an application fee for approval of a plan of work (regulation 86), paid once to cover ISA’s administrative costs in processing an application;
  • an annual reporting fee (regulation 84) related to the cost of preparing annual reports; and
  • an annual fixed fee (regulation 85) for the likely costs associated with ISA’s management of the contract and conducting inspection and enforcement activities.

Noting this is a common practice in land-based mining administration, Lodge highlighted that these tasks and expenses occur since the contract is awarded regardless of the commencement of commercial production.

Chair Myklebust invited delegates to further reflect on linking the payment of the annual fixed fee to the date of commencement of commercial production.

Turning to environmental externalities, Chair Myklebust reminded delegates of the 2022 Council decision (ISBA/27/C/43) to conduct an independent study to assess the value of ecosystem services and natural capital of the Area as well as the potential environmental costs of activities in the Area, including by incorporating estimates of monetary values of effects on ecological functions and ecosystem services.

Luke Brander, Vrije Universiteit Amsterdam, presented two studies on the value of ecosystem services and natural capital of the Area and on guidance on the economic valuation of ecosystem services and natural capital of the Area.

He described environmental externalities, offered examples, and discussed policy instruments for controlling them. He focused on ecosystem services, related economic values, and impacts of deep-sea mining on ecosystem services. He further presented selected guidance, including valuation methods and ways to assess uncertainties.

Brander concluded that very limited information is available on the value of ecosystem services from the Area and no information exists on how many people attach value to the conservation of biodiversity in the Area. He noted this forms an insufficient basis for value transfers to estimate external costs of deep-sea mining activities. He recommended conducting primary valuation studies for key ecosystem services provided by ecosystems in the Area, highlighting the relevance of transparency on the methods, data, and analysis.

Germany presented a concept note on integrating environmental costs into the payment mechanism of the draft exploitation regulations. He stressed the valuation of externalities is not a new concept and is incorporated in several national legal systems. Stating that the concept note contains suggested language for the draft regulations, he urged assessing the true costs of deep-sea mining activities to humanity, starting from measurable costs, and eventually leading to different levels of compensation for diverse environmental externalities.

Many members supported exploring the possibility to use an equalization measure to take into consideration environmental externalities and incorporate them in the payment mechanism, further supporting the content of the concept note. They argued that introducing environmental externalities is not just a responsibility, but a necessity for sustainable development to ensure that true costs and risk are accounted for.

Some underscored the need to incorporate cultural ecosystem values and services, highlighting the cultural value of marine ecosystems and perspectives of Indigenous Peoples and local communities. A delegation pointed out the need to keep working on identifying key ecosystem services that may have high economic value. Another stressed that one reason for the current climate and biodiversity crises is the economic model’s failure to properly account for human activities’ environmental impacts and harm. A member noted that the suggested financial model for deep-sea mining solely focuses on contractors’ profitability, omitting the value of natural capital.

Others emphasized that incorporating environmental externalities in the payment mechanism of the draft regulations would be premature. They noted that evaluating environmental costs of deep-sea mining is complex and agreed it warrants further in-depth studies. They called for first developing a common understanding, including an internationally agreed methodology and relevant indicators, and also addressing positive externalities. They suggested incentivizing the development and use of technology and equipment that minimize environmental impacts. They emphasized that land-based mining jurisdictions do not calculate environmental externalities for royalty rates, cautioning against the introduction of discriminatory provisions. They stressed that UNCLOS and the 1994 Agreement provide the requirements for setting royalty rates.

Observers emphasized that measuring economic values for ecosystem services in the Area has many knowledge gaps and uncertainties. They underscored that addressing environmental externalities for deep-sea mining should be considered whether land-based mining does so or not, stressing the negotiations should not “take place in a bubble” and should contemplate the wider global debate over resource use. They queried the species extinction opportunity costs, which may be infinite, further stressing that the appropriate level of royalties to compensate future generations cannot be calculated. They added that any agreed methodology for the internalization of environmental externalities for deep-sea mining should also address the water column. They cautioned that an equalization measure for environmental externalities may create a false incentive that mitigation strategies can be funded with the raised revenue, warning that there is no publicly available scientific evidence to suggest that restoration or offsetting are viable mitigation strategies to address impacts in the deep sea. They reiterated the call for a moratorium.

Responding to members’ comments, Brander noted that:

  • the studies identify some key ecosystem services of economic importance that could be targeted first, but all relevant ecosystem services likely to be impacted should be included in the analysis;
  • some services, including the spiritual importance of marine ecosystems, are not included in the relevant literature of environmental economics and will need to be included in alternative ways;
  • a pragmatic approach would begin with quantifiable ecosystem services, pointing out that useful information on designing payment mechanisms or imposing environmental taxes already exists;
  • incentives could be used for cleaner production methods; and
  • the studies addressed available information on the value of ecosystem services of deep-sea ecosystems and did not analyze how this can be incorporated into the financial model for deep-sea mining and the relevant payment mechanism.

Closing the 10th meeting of the working group, Chair Myklebust noted that, notwithstanding divergent opinions, all agree that environmental externalities require further discussion. He thanked delegates and participants for the hard work and the constructive interventions, noting progress in several aspects of the draft regulations. He encouraged delegates to continue engaging with each other and look for common ground.

Thematic Discussion on Equalization Measures: On Tuesday, 19 March, delegates engaged in a thematic discussion on equalization measures, facilitated by Robyn Frost (Australia), aiming to address cases where contractors pay different sponsor state corporate income tax.

Frost provided an overview of the discussions on equalization measures under the auspices of the Working Group on the financial terms of a contract. She reminded delegates that, following intersessional work, a draft model, including draft text for the exploitation regulations, has been proposed without prejudice to the position of any member since consensus has not been reached.

Daniel Wilde (Commonwealth Secretariat) offered a comprehensive presentation focusing on, among other things:

  • the meaning of an effective tax rate, including the relevant current range for land-based mining jurisdictions;
  • the financial model calculating effective tax rate, including different options, as presented in previous sessions by Philip Roth, Massachusetts Institute of Technology (MIT); and
  • how an equalization measure would work, including shortlisted options and key benefits.

Wilde stressed that equalization measures do not dictate sponsoring states’ tax policy. He added that while UNCLOS and the 1994 Agreement neither mandate nor exclude such measures, they provide a basis for them, since equalization measures would contribute towards meeting all UNCLOS criteria.

In the ensuing discussion, delegates generally supported an equalization measure to ensure a level-playing field between deep-sea and land-based mining. They discussed, among other things: whether subcontractors are considered in the proposed equalization measure options; how equalization measures apply for the Enterprise and state-owned companies; and the differences between tax equalization measures and the incorporation of environmental externalities in the financial model.

Responding to members’ comments, Wilde and Roth stressed, among other things, that: subcontractors can be included in equalization measures under the hybrid model as they are considered related entities under GloBE rules (Global Anti-Base Erosion Model rules); and relevant UNCLOS provisions address the allocation of net income for the Enterprise, while state-owned companies are usually separate entities, and thus equalization measures can apply.

Frost noted general support for the use of equalization measures. She added that most members agree that a general provision may be included in the regulations, while the details may be set out in a standard. She noted some support for the hybrid option but added that further work is needed to reach consensus.

Informal Working Group on Inspection, compliance, and enforcement (ICE): Thematic Discussion on the Inspection Mechanism: On Friday, 22 March, delegates engaged in a thematic discussion, facilitated by Terje Aalia (Norway) on the ICE mechanism, particularly the establishment of a compliance committee.

Aalia provided background information, focusing on proposals to establish a compliance committee either as an independent subsidiary body under the Council or as part of the LTC. He reminded delegates that, during the 27th session in 2022, the Netherlands and Norway submitted a proposal on introducing an inspectorate. He added that Germany subsequently proposed a mixed model, which is contained in the consolidated text.

Germany presented a proposal on establishing the compliance committee as a new subsidiary body under the Council, noting it will offer greater scrutiny of contractors’ activities in the exploitation stage. He stressed that the compliance committee’s main function would be to assist the Council in dealing with cases of non-compliance, emphasizing that “ensuring compliance goes beyond inspection.” He envisioned a 15-member compliance committee, consisting of regional group representatives and LTC members with the Council retaining control. He added this will enable the ISA as a regulator, bringing it up to the standards of other frameworks and bodies, and reassuring stakeholders that cases of non-compliance will be given due consideration.

Some delegations pointed towards relevant UNCLOS articles on establishing subsidiary bodies, including Article 153 (system of exploration and exploitation), Article 160 (powers and functions of the Assembly), Article 162 (powers and functions of the Council), Article 163 (organs of the Council), and Article 165 (the LTC). Most members agreed that UNCLOS provides a suitable mandate for establishing cost-effective subsidiary bodies.

Members agreed on the need for a robust, credible, independent, and adequately resourced mechanism to ensure inspection and compliance, with some emphasizing that without it, no exploitation activity in the seabed should be authorized. However, they expressed divergent opinions on the model to be adopted.

Many supported establishing a transparent and independent compliance committee as a subsidiary body of the Council with qualified and trained personnel, noting it lies at the heart of an effective ICE mechanism. They highlighted the need for follow-up in cases of non-compliance, stressing that otherwise the regulations cannot fulfil their objective. Delegates noted the LTC may lack the necessary expertise, cautioning against adding to its already heavy workload, and underscored preventing potential conflicts of interest.

Some delegates supported establishing a compliance committee under the LTC, noting that such a model is aligned with UNCLOS and the 1994 Agreement. They cautioned against establishing a body under the Council, noting that it could overlap and conflict with LTC’s work. They advised against separating similar functions among different organs, invoking cost-efficiency. Some delegates pointed to relevant UNCLOS provisions on the LTC functions. They added that choosing its members from LTC members with relevant expertise, ensuring equitable geographic representation, would suffice. A member underscored that the compliance committee’s decision-making powers cannot go beyond inspection and supervision. Another proposed contrasting envisaged functions of the compliance committee with those of the LTC to conclude if the creation of a new body is necessary.

A delegate suggested developing an analysis of the cost implications for each option. Some cautioned against politicizing the compliance committee. Others pointed to the need for a review of the ICE mechanism to future-proof it, further suggesting the use of remote technologies for inspection purposes.

Delegates further discussed issues around the size of the compliance committee and its composition, including whether Council or LTC members should participate. Some suggested LTC members participating in the deliberations with no decision-making rights. A member stressed the relevance of nominating regional group representatives by consensus and others urged for inclusivity, gender, and regional balance. Yet others queried whether compliance committee members would be individual experts nominated by members and whether they could be selected among former LTC members. A member suggested seeking the LTC’s views on the issue.

On the compliance committee’s decision-making process, a delegate suggested consensus and, when all efforts to reach it are exhausted, a simple majority vote among members, adding that relevant costs should be part of the ordinary ISA budget. She added that oil and gas inspectorates can offer useful lessons and artificial intelligence applications, remote technologies, and real-time data have to be taken into account.

A regional group stressed the links between the functions of the compliance committee and its decision-making powers, noting it should: exercise oversight over the inspectorate, advancing compliance; consider complaints; issue compliance notices and emergency orders; receive reports from inspectors and prepare annual reports on compliance; and make relevant recommendations to the Council. A delegate suggested the compliance committee focus on monitoring inspection activities, including: reviewing the list of inspectors, reports, and recommendations; issuing compliance notifications; and preparing annual compliance and enforcement reports. He stressed that remaining functions should continue to be carried out by the LTC. Another member proposed the compliance committee be the equivalent of a steering committee and a sanctioning body.

Aalia thanked delegates for their contributions, encouraging intersessional work.

Informal Working Group on Institutional Matters: The working group, co-facilitated by Georgina Guillén-Grillo (Costa Rica) and Salvador Vega (Chile), met on Monday, 25 March, focusing on effective control, which addresses the relationship between a sponsoring state and a non-state contractor.

The Co-Facilitators provided an overview of the discussions on effective control, drawing attention to the relevant webinar, which took place on 1 September 2023. She outlined relevant UNCLOS articles and drew attention to the relevant 2011 Advisory Opinion of the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea (ITLOS). Among other things, she highlighted the purpose of requiring the sponsorship of applicants for exploration and exploitation contracts is to ensure that the obligations set out in UNCLOS are complied with by entities that are subjects of domestic legal systems. She added that the ITLOS opinion cautions against an interpretation allowing sponsoring states “of convenience.” She noted equality of treatment between developing and developed sponsoring states is consistent with the need to prevent commercial enterprises based in developed states from setting up companies in developing states, acquiring their nationality, and obtaining their sponsorship in the hope of being subjected to less burdensome regulations and controls. The spread of sponsoring states “of convenience” would jeopardize uniform application of the highest standards of protection of the marine environment, the safe development of activities in the Area, and protection of the common heritage of humankind.”

The Co-Facilitators underscored that UNCLOS does not define effective control, but it is a precondition for an exploitation contract. They stressed that nationality and effective control are different criteria, pointing to UNCLOS Article 4 (qualifications of applicants) of Annex III (basic conditions of prospecting, exploration, and exploitation).

They highlighted a relevant discussion paper containing two approaches: regulatory control and economic control. She concluded that discussions on effective control are linked with other important issues, including rules regarding monopolization, noting that a number of draft regulations are relevant to the discussions.

They drew attention to the briefing note produced to facilitate the deliberations, particularly the three guiding questions on:

  • the overall purpose and rationale for effective control;
  • the need for a clear definition; and
  • the approach to be followed among the regulatory and economic control options.

A few members emphasized that effective control must be interpreted as effective regulatory control according to UNCLOS, relevant legal opinions, and current experience. They emphasized that sponsoring states exercise regulatory control through national, legal, and administrative measures, allowing them to meet their due diligence obligations and ensure compliance by the contractors. They stressed there is no need for a definition in the draft regulations.

A member cautioned against disrupting existing arrangements. She noted this would undermine developing states’ participation, leaving state-owned enterprises as the only avenue, leading to legal conflict, instability, and uncertainty. She warned that introducing economic control would upend existing arrangements and contracts relied upon in good faith. She added that economic control is challenging to define, including in cases of ownership changes or joint ventures, further urging not confusing sponsoring requirements and effective control with issues of liability for environmental damage, for which a different set of tools is on the table.

Another delegate stressed that UNCLOS is clear on the purpose and rationale of effective control, including in Articles 139 (responsibility to ensure compliance and liability for damage), 153 (system of exploration and exploitation), and Article 4 (qualifications of applicants) of Annex III (basic conditions of prospecting, exploration, and exploitation).

A member noted that, in most cases, nationality can determine the sponsoring state for the applicant other than in special circumstances, such as a partnership or consortium of entities, where nationality cannot be determined, opposing using effective control as the primary or sole criterion. He underscored that the exploration regulations follow the approach of legal and regulatory control. He queried the implications of establishing some form of economic effective control, stressing that further discussion is required.

Some delegates noted that provisions of effective control are of utmost importance for the exploitation regulations since sponsorship is a key element, and the relevant rules should be clear due to their legal implications. Most members recognized that there are different approaches to effective control in international jurisprudence.

Some delegates noted that both regulatory and economic control are important. Others pointed to “grey areas” where regulatory effective control may not be sufficient.

A participant underscored that sponsoring states must demonstrate legal authority to enforce their regulations to contractors. He added that the effective control provisions do not apply to the Enterprise, which is directly accountable to the ISA.

Some delegations supported the overall purpose and rationale for effective control, and developing criteria and procedures for exercising effective control. A member stressed the need to guarantee that the sponsoring state has effective jurisdiction over the applicants.

Some delegates underscored that both regulatory and economic control are important, with some supporting a mixed approach that draws elements from both. A few members noted monopolization and spread of sponsoring states “of convenience” need to be prevented, adding it may jeopardize marine environmental protection regulations.

A member emphasized that while the exploration regulations address effective control as regulatory control, exploitation as a “potentially much more impactful and destructive activity should be subject to a more rigorous regulatory framework.”

Observers noted that effective control matters for enforcement, liability, and the integrity of the ISA. A couple emphasized the need to clearly define “effective control” in the regulations and focus on the economic control approach. One stressed that all contractors who have engaged in activities in the Area have done so with the knowledge that the applicable legal regime is incomplete and subject to change. Another noted that effective control matters for enforcement because a contractor can escape sanctions through inadequate capitalization, and for liability, noting that if contractors can escape paying compensation, “both the sponsoring state and the environment will suffer.”

Co-Facilitator Guillén, noting the range of views, invited the delegations to discuss the issue further intersessionally and closed the thematic consultation.

Informal Working Group on the Protection and Preservation of the Marine Environment: The working group met on Tuesday and Wednesday, 26-27 March, discussing, among other things, the establishment of an environmental compensation fund, environmental impact assessments (EIAs), and test mining. A thematic discussion on underwater cultural heritage took place on Wednesday.

On Tuesday, Facilitator Raijeli Taga (Fiji) opened the seventh session of the Informal Working Group on the protection and preservation of the marine environment. She outlined the topics for discussion and invited delegates to focus on the environmental compensation fund, pointing to the relevant briefing paper and the guiding questions contained therein.

On the kind of damage to be compensated, many delegates pointed to the 2011 ITLOS Seabed Dispute Chamber Opinion, stressing that “damage to the Area and its resources constituting the common heritage of humankind, and damage to the marine environment” should be included. Some stressed the type of damage covered will affect the entities having access to the fund.

Some delegates noted that only damage unlawfully caused by the contractors’ activities and for which the contractor cannot meet their liabilities and the sponsoring state is not liable, should be considered for the fund. Others emphasized that “any and all” environmental damage, including from lawful activities, accidents, and non-anticipated impacts, should be compensated, including for coastal state marine zones, as well as other damage to property, personal injuries, and economic loss. A delegate noted that, given scientific uncertainty, unforeseen damages will occur.

A regional group noted that compensation should address cases of unforeseen environmental damage for which neither the contractor nor the sponsoring state is liable, as well as cases where the contractor cannot meet its liability obligations.

Many delegates supported the polluter pays principle, noting the fund should be considered as a last resort. They highlighted the links between the fund, liability, and insurance, underscoring the need to address these issues together.

A few members underscored the need to analyze available insurance options for deep-sea mining, while a delegate stressed that test mining impacts should also be included. A delegate noted links with the overall assessment of the marine environment, cautioning against provoking irreversible damage before understanding potentially key ecosystem functions. Another queried if compensation should be included for sponsoring states unable to extract resources due to a moratorium. A member suggested reconsidering the fund’s name.

Observers supported a broad scope for the fund and stressed that it should cover damages wherever they occur and not be limited to the seabed and areas beyond national jurisdiction.

They further noted that discussions on effective control and ecosystem valuation are pertinent, urging distinguishing between protection and compensation. They stressed that “trying to fix the permanent damage that deep-sea mining will cause will be so costly that no one will be able to afford it, neither governments nor companies.” Urging for preventing harm rather than seeking remedies, they underscored that if uncertainty exists and adequate measures to prevent harm cannot be ensured, the activity should not proceed.

An observer drew attention to research findings noting that large-scale attempts to restore deep-sea ecosystems would cost trillions of dollars, and remediation is likely to be ineffective due to the slowness of deep-sea recolonization of disturbed habitats, the large areas affected, and the irreversibility of habitat loss.

On how the funds and any interest generated will be managed and by whom, some members supported management by an independent or external administrator. A few delegates stressed that the LTC and the Finance Committee lack the relevant expertise. Another pointed out that, with qualified personnel, the fund could be placed within the Secretariat.

A regional group noted that the Council should define the fund’s rules of procedure based on LTC recommendations. A few delegates stressed that such rules should be in place before the approval of any plan of work. They underscored that the ISA needs to know the amount of the contribution to the fund to assess a contractor’s application and determine financial solvency. Some delegations suggested requesting the finance committee to draft a proposal.

On whom is to be compensated, several members drew attention to the 2011 ITLOS advisory opinion as a starting point regarding subjects that may be entitled to claim compensation. Delegates pointed out: the ISA, on behalf of humankind; entities engaged in deep-sea mining; other users of the sea; coastal states; any affected person or state; regional, subregional, and sectoral frameworks and bodies; any member of the international community; any public or private entity; and non-governmental organizations. An observer noted that any legal person should have recourse to the fund.

On the standard of proof that will be required to access the fund, a member highlighted the civil litigation standard of proof as a starting point. Some delegates suggested a strict or strong liability regime, while others noted that the liability provisions will impact the type of damages covered by the fund, its size, and required contributions, and urged considering links with the internalization of environmental externalities in the payment mechanism.

Cautioning that until a liability regime is agreed upon, the interface between liability and the fund will be unclear, observers emphasized the need for strict contractors’ liability, cautioning against leaving such issues to sponsoring states’ discretion. They stressed that the fund needs to cover the liability gap identified by ITLOS and not only address environmental damage.

On what happens if there is damage to the environment before payments can be made, most members supported this can be avoided by not allowing any activity before the fund exists and has the required contributions Many delegations stressed that exploitation should not commence until the fund is operational.

On the elements that should be addressed under the regulations and those placed under standards and guidelines, a delegate suggested drawing from intersessional work on environmental impacts where key rules are included in the regulations and detailed provisions in standards and guidelines. Another noted the regulations should address: establishment and governance; criteria for eligibility and compensation; procedures for assessing damage and determining compensation amounts; oversight and dispute resolution; and reporting requirements. He added that the standards and guidelines could include specific methodologies for assessing environmental damage, calculating compensation, and implementing restoration initiatives.

A member suggested that compensation cover costs for reparation and, to the extent possible, restoration and rehabilitation of the marine environment, and other reasonable costs according to the best available scientific information. Some members stressed the need to agree on the scope, purpose, management, and funding provisions first.

Delegates then addressed the relevant regulations, discussing how to put their suggestions into practice. On the establishment of an environmental compensation fund (regulation 54), a delegate reiterated that the fund should be established before the approval of a plan of work for exploitation rather than before the commencement of commercial production.

An observer suggested a provision on claimants and cautioned against confusing the administration of claims against the fund with refunds. He added that an independently audited statement of the income and expenditure of the fund should be made publicly available as a matter of public interest.

On the purpose of the environmental compensation fund (regulation 55 alt), delegates discussed two alternative formulations, expressing mixed preferences. A couple of members noted that a provision reiterating the polluter pays principle is unnecessary as other regulations already cover it. A delegate stressed that compensation should not be limited to unlawful and unauthorized actions.

On a provision on compensating “any person” affected, a member stressed that the recipients should be further discussed. Another noted that affected states should be the ones compensated. On the fund being subject to periodic review, a delegate suggested specifying a period for such review. On using the fund as a last resort “after exhausting all other possibilities,” a member suggested further detail on the conditions for all other possibilities to be considered exhausted.

A regional group supported the fund functioning as a last resort compensation fund for environmental damage caused by contractor activities that were not foreseen in the plan of work or that arise from a breach of any condition, suggesting adding unforeseen environmental damage.

On Wednesday, Facilitator Taga, invited delegates to discuss the EIA process on the basis of the briefing paper on conceptual topics related to environmental matters.

The UK, on behalf of the coordinators of the intersessional work to streamline the structure of the EIA provisions, outlined the outcomes of their work. She explained the proposed new structure, which includes developing a regulation for each procedural step of the EIA process and placing supplementary provisions and details under annexes, standards, and guidelines, as appropriate. Most members supported the outcome as a basis for further discussion, including the criteria for placing provisions to annexes, standards, and guidelines, as appropriate.

Many members welcomed the proposed regulation on environmental goals and objectives (regulation 44 ter). A delegate stressed that environmental goals and objectives are important in formulating standards. A member highlighted the 2019 Council request to the LTC to develop and recommend ISA’s environmental objectives and goals, noting their usefulness in developing and assessing EIAs.

A delegate requested the LTC hold open meetings when assessing EIAs. An observer noted that the current draft does not propose a transparent process open to stakeholders wishing to present independent scientific research.

A member underscored that a clear, effective, and precise process would guarantee science-based decision making and the implementation of the precautionary principle. Some members suggested drawing inspiration from the EIA provisions of the UN Treaty on Biodiversity of Areas Beyond National Jurisdiction (BBNJ Treaty). An observer drew attention to the BBNJ Clearing-House Mechanism for the submission of EIA reports.

An observer cautioned against the requirement for a two-thirds vote and a majority in each “Council Chamber” to disapprove a contract submission if the LTC recommends approval of a plan of work.

Delegates then addressed the relevant draft regulations, particularly the EIA process (regulation 46). Many noted that the provisions on the scoping report (regulation 47 bis) should precede the one on the EIA process. Some members stressed that certain requirements of the BBNJ Treaty should also be reflected in the draft regulations, ensuring a consistent approach.

Some delegates suggested the EIA process should be based on relevant “and sufficient” baseline data to ensure a robust set of information is available. Others supported reference to “best available science and scientific information,” in line with the BBNJ Treaty. Delegates discussed, among other things:

  • references to “most affected” coastal states, with some noting that further discussions will be needed on their identification and others noting that coastal states are a cross-cutting issue in the regulations;
  • whether to refer to the EIA “process,” with many delegates expressing their support, including defining it in the glossary, and some noting that the provisions address the EIA’s content and not the process;
  • the placement of a provision on an independent scientific assessment;
  • the notion of environmental risk, impact, and effect, with some delegates suggesting defining and using them consistently;
  • language around a provision on traditional knowledge;
  • the conditions, modalities, and necessity of an independent scientific assessment prior to the submission of the proposed environmental impact statement (EIS), with some supporting it; others emphasized that the contractors should analyze the data for preparing the EIS, which the LTC will subsequently assess; and
  • the notion of “targeted consultations,” with some suggesting a standardized, open, and inclusive process on stakeholder consultations.

The UK clarified that intersessional work would address the provisions’ restructuring rather than the substantive elements of the regulations.

Observers urged for relevant and sufficient environmental baseline data, reiterating that the sufficient information requirement is necessary for science-based informed decisions. They emphasized that an application for a plan of work cannot be assessed in the absence of strategic environmental objectives. They further emphasized that consulting obligations of the contractor and the ISA should not be confused, expressing concerns about providing wide discretion to contractors to decide which stakeholders’ views qualify as relevant and substantive to be included in the EIS.

Facilitator Taga then invited delegates to focus on REMPs, particularly how the environmental management and monitoring plan (EMMP) and the environmental management system (EMS) should be coordinated with the relevant REMP, as well as related legal consequences.

Many delegates highlighted the importance of REMPs, including as a basis for each contractors’ EMMP and EMS. Many also stressed that REMPs have to be in place before assessing an application for a plan of work. A delegate added that REMPs are a fundamental document addressing the “volatility of miscellaneous parameters” in the marine environment, and assisting in: defining what should be subject to monitoring; developing surveillance areas, including impact reference zones and preservation reference zones; and identifying areas in need of protection and no mining areas.

Some members stressed that any plan of work should be in accordance with the relevant REMP, adhering to all its measures, including for the protection of species and habitats or designation of no-mining areas. A delegate further highlighted the need for monitoring and assessment of the EMMP once a contract is awarded, as well as periodic review of REMPs, which may lead to modifications in regional thresholds, indicators, and targets.

A delegate suggested developing a regulation establishing that ISA organs and bodies are prohibited from taking actions that contravene the objectives established in REMPs. Another recommended including contractors in the development of REMPs.

A regional group emphasized that the EMMP and EMS should be closely coordinated with the REMP to ensure a harmonized approach to environmental protection.

Some members underscored that REMPs are environmental policy instruments, highlighting the need to guarantee flexibility, adaptability, and effectiveness in managing the marine environment and seabed activities. They added that contractors should take REMPs into account as a guide for environmental management.

Delegates further discussed: the relationship between REMPs, EMMPs, and ISA’s environmental objectives and goals; REMPs as the basis for developing a plan of work; and the designation of no-mining areas and areas of particular environmental interest under REMPs, which will restrict activities.

A few delegations stressed that if an application for a plan of work is submitted prior to the relevant REMP being in place, the LTC should be required to prioritize the development of such REMP. Some delegations noted there should not be a timeframe for developing REMPs.

An observer stressed that it is essential for contractors to take into account the REMP when deciding the EMMP, emphasizing that policy direction is required to clarify the operationalization of contractors’ legal duties. She highlighted the importance and multiple functions of REMPs, emphasizing that an EMMP should consider not only the temporal variability of areas under exploitation but also the areas under REMPs. She noted this would ensure connectivity between protected areas throughout the region. Another observer emphasized that REMPs offer an excellent opportunity to ensure consistency and conformity with the BBNJ Treaty, ensuring that no activities undermine multilateral ocean conservation efforts.

Regarding the legal status of REMPs, some delegates stressed that REMPs requirements should be legally binding to fulfill UNCLOS-related obligations. Some delegates suggested making compliance with REMPs a condition for an exploitation contract. Another proposed using the Council or Assembly to approve REMPs, rather than the LTC, to give them legal effect. Some members noted that REMPs can be provided with legally binding status through the RRPs and standards, or through a Council decision, while allowing flexibility in implementation.

A member emphasized that REMPs are a tool that the ISA, through a Council decision, has chosen to fulfill its obligations under UNCLOS Article 145 (protection and preservation of the marine environment), suggesting, alongside a regional group, making compliance with REMPs a condition for an exploitation contract, thus ensuring compliance without changing REMPs’ legal status.

A few delegates stressed that REMPs are useful tools to protect the marine environment but have no legal standing, so they can have no legal consequences.

Observers suggested that REMPs can be made legally binding by incorporating them into the exploitation regulations. They further proposed that aspects of REMPs adopted in an EMMP also impose legal consequences. They noted that if key components of REMPs are not given a legally binding nature, they should instead be named “regional mining management plans.”

Reminding delegates that 1 May 2024, is the deadline for written submissions, Facilitator Taga invited the Council to focus on test mining.

Germany presented the report on the outcomes of intersessional work, focusing on how test mining fits with exploration and exploitation and the concept of a validation monitoring system (VMS). He highlighted three main concepts:

  • the links between the approval procedure for a test mining project and exploration and exploitation;
  • a VMS; and
  • the economic benefits, which contractors may receive through the collection of mineral resources during test mining.

He noted broad agreement in the intersessional group that test mining projects should be regarded as “an activity in the Area.” He pointed out that, according to UNCLOS, an ISA approval would be required for test mining under either the exploration or the exploitation regime, and thus, it needs to be undertaken under a contract. He added that no consensus could be reached on a regulatory approach providing that test mining has to be undertaken before applying for a plan of work to inform EIAs.

Further discussions will also be needed on the VMS, a concept already applied in other extractive industries. A VMS is normally applied after commercial production has started in order to monitor the “real system” and to control whether all requirements are complied with.

In the ensuing discussion, including on the relevant regulation on test mining (regulation 48 ter), many members supported test mining is itself an activity in the Area and should be carried out under an exploitation or exploration contract. Many further stressed that test mining should be subject to an EIA.

Delegates emphasized test mining assists in better understanding marine ecosystems and associated risks of human activities. Some cautioned that small-scale test mining cannot provide the necessary data, including on environmental impacts. Members expressed divergent positions on whether test mining should be addressed under the exploitation or exploration contract, with many supporting the latter. Many delegates, including a regional group, supported conducting test mining prior to the approval of a plan of work, noting its results should inform the development of the plan of work and the EIA. A member suggested allowing applicants to choose when to conduct test mining. Another suggested developing guidelines for a standardized process.

Delegates indicated among the purposes of the test mining: informing the development of an application of a plan of work; better understanding marine ecosystems and associated risks of human activities, including prediction of cumulative impacts and contrasting EIA information with real data; testing the appropriateness of the actual equipment; improving techniques; and fostering innovation.

A delegate noted that specific provisions on test mining should be introduced in the exploration regulations through specific amendments. Another emphasized that test mining should be addressed as a standalone part of the exploitation regulations if requirements to conduct test mining before the plan of work are included.

A delegate stated if test mining is to inform EIAs, it has to be done before conducting the EIA, which means it falls under the exploration regulations. She added that if the obligation for test mining falls under the exploitation regulations, an exploitation contract is required for it to be in effect. Another delegate noted test mining should be regulated and approved by the LTC.

A member explained that test mining serves two main purposes: verifying the contractors’ technical capability to conduct exploitation in accordance with the proposed plan of work; and their capability to maintain the due level of protection of the marine environment during exploitation. She added that there are cases where test mining may not be required, such as when using identical equipment in an area with similar characteristics.

A member cautioned that no test mining should be carried out with fewer safeguards than those applicable to land-based mining. Another stated that the approval process should be clear and transparent, with publicly available results. An observer stressed the need to avoid risk to submarine cables. A delegate underlined the need to develop a legal definition of test mining.

A delegate added that important future questions include whether: a test mining requirement during exploration should be explicitly referenced in the exploitation regulations; the exploration regulations will need to be amended to reflect such requirement; and test mining may be required before a plan of work, but not as part of exploration.

An observer stressed that without test mining, decisions can only be based on predictive models, introducing greater uncertainty.

Facilitator Taga thanked delegations’ engagement and noted that intersessional work will continue.

Thematic Discussion on Underwater Cultural Heritage: On Wednesday, 27 March, a thematic discussion ensued on underwater cultural heritage (UCH), facilitated by Clement Yow Mulalap (Federated States of Micronesia). Mulalap presented the briefing note, drawing attention to intersessional work focused on tangible and intangible UCH. He noted tangible UCH includes human remains, wrecks of ships, human artifacts, and other archaeological and historical objects and sites, while intangible UCH includes links with cultural and sacral values. He noted further work is needed on intangible UCH, including a relevant definition.

A member suggested addressing intangible UCH elements through the establishment of protected areas with cultural interests, encouraging Indigenous Peoples and local communities to notify the ISA of the existence of such areas.

A member drew attention to a joint proposal submitted by some participants during the intersessional work on the terminology, as well as for a system of protection based on a notification and cooperation regime. He noted that if deep-sea mineral exploitation proceeds, the best way to protect intangible UCH, the uses, representation, expressions, knowledge, and techniques of communities, groups, and individuals is through the creation of zones of particular environmental interest, highlighting the cultural character of those zones.

Many members supported including references to intangible UCH in the regulations. A regional group noted that defining the term is essential to ensure that all aspects of cultural heritage are recognized and protected, facilitating the sustainable use of underwater resources. Other members noted the relevance of including the topic in the EIA provision of the regulations.

Some members noted that for a definition on intangible UCH, the UN Educational, Scientific and Cultural Organization (UNESCO) 2001 Convention on the Protection of UCH, and the 2003 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage are good starting points for further discussion. A delegate questioned whether the regulations should address issues of intangible UCH at all, pointing out that UNCLOS Article 149 (archaeological and historical objects) refers to “objects of an archaeological and historical nature found in the area.” Another stressed that nothing in UNCLOS suggests that “objects” refer only to physical ones, noting they can be defined broadly.

Observers highlighted the cultural significance of intangible UCH and Indigenous perspectives. They stressed that intangible UCH includes traditional knowledge, customs, rituals, languages, stories, oral histories, navigation techniques, traditional fishing practices, spiritual beliefs associated with the marine environment, and other aspects of culture that are deeply tied to a community or place. Noting that “protecting intangible heritage keeps cultures alive,” they highlighted that the world’s understanding of what is important to protect is changing. They drew attention to fulfilling free, prior, and informed consent requirements and highlighted UN Human Rights Council resolution 48/13 on the right to a clean, healthy, and sustainable environment as a human right.

Facilitator Mulalap welcomed further intersessional discussions.

Informal Discussions on the Consolidated Text: The Council held informal discussions over the course of six days, initiating the first reading of the consolidated text.

On Monday, 18 March, Interim President Mijares presented the consolidated text (ISBA/29/C/CRP.1), noting it is subject to further deliberations. He explained that the document does not intend to include all proposals but to track emerging consensus, adding that a compilation text is also available.

Members engaged once more in a discussion on its content, including the process through which it was developed, as well as on working modalities, in particular whether informal informals would be useful at this stage.

Some delegates welcomed the consolidated text, noting progress in terms of organization, streamlining, and simplicity and reminded members that similar approaches were used during the negotiations of the 1994 Agreement, the UN Fish Stocks Agreement, and the BBNJ Treaty.

Other members, while agreeing that the consolidated text can be a starting point for discussions, pointed out lack of: track changes as well as suggestions’ proponents and rationale, posing additional challenges, particularly for smaller delegations; and clarity on the criteria to retain or move proposals to the suspense document. They emphasized that nothing is agreed until everything is agreed and underscored that holding informal informals would be premature and observers should participate.

Interim President Mijares reminded delegates that the development of the consolidated text had been decided by the Council and concluded that it can be the basis for negotiations. He added that suggestions to improve the consolidated text will be considered for the next Council meeting in July 2024. He suggested that thematic discussions be held during this session, rather than informal informals, allowing broad participation.

On Wednesday, 20 March, Interim President Juan José González Mijares, Mexico, invited delegates to commence the revision of the consolidated text.

On the preamble, some members supported including a provision to acknowledge current uncertainties and limited knowledge about deep-sea ecosystems and the potential effects of activities in the Area, and to have the possibility for considering the revision of the regulations in light of advancements in scientific knowledge. Others suggested editorial amendments.

On use of terms and scope (regulation 1), members discussed, without reaching agreement, whether to retain references to: the rights and legitimate interest of coastal states; the right to conduct marine scientific research; the freedom of the high seas; and REMPs.

Some delegates suggested broadening the provision on coastal states rather than limiting it to UNCLOS Article 142 (rights and legitimate interests of coastal states). Others emphasized the need to continue informal discussions on coastal states as the draft regulations contain multiple cross-cutting provisions. They further debated a reference to REMPs, with many delegates suggesting its retention. Delegates also discussed suggestions to improve the logical flow of the regulations’ provisions as well as editorial proposals.

Regarding the principles, approaches, and policies (regulation 2), delegates expressed divergent views on: whether to align the principles with language adopted under the BBNJ Treaty; whether to include references to other global commitments and international instruments; how to make the regulations future-proof; and whether to include criteria to be fulfilled prior to commencing exploitation in the regulations or as a Council decision.

Some members urged retaining a provision noting that no exploitation shall be authorized before the relevant standards and guidelines are adopted, ensuring effective protection of the marine environment, pointing to the relevant LTC recommendation on a phased approach to deliver them.

A member outlined three pre-conditions for considering any plan of work for exploitation: putting in place a robust and environmentally sound framework; ensuring adequate scientific information for establishing a sound environmental baseline that allows evidence-based decisions; and protecting 30% of the ocean, as agreed under the Kunming-Montreal Global Biodiversity Framework.

Another member emphasized the need to strike a balance between the exploitation of deep-sea resources and environmental protection, reminding delegates that most of the scientific information and data on deep-sea ecosystems were obtained through contractors’ activities.

Delegates further discussed references to the precautionary principle/approach; open access to non-confidential data and information; the relationship with Indigenous and traditional knowledge and free, prior, and informed consent; and whether to retain a provision on members, contractors, and the ISA upholding public trust and not engaging in decisions if they have a conflict of interest.

Delegates stressed the need to streamline and harmonize the language across the regulations; further address the relationship with relevant international organizations; consider further effective stakeholder involvement and public participation; and highlighted the need to reach common understanding on an integrated approach to ocean management.

A member requested guidance from the ISA legal officer on whether language from the BBNJ Treaty can be used; the applicable legal principles; and the application of holistic ocean governance when different frameworks coexist.

Observers supported clearly stating the preconditions for initiating consideration of a plan of work and emphasized that obligations on environmental protection should not be weighed against economic interests. They called for dedicated marine scientific search and highlighted the duty to safeguard and protect Indigenous cultural values, including requirements on free prior and informed consent.

Negotiations on the consolidated text resumed on Thursday, 21 March.

On the duty to cooperate and exchange information (regulation 3), many members expressed general support for the current language. Some delegations proposed amendments, including on the way to refer to coastal states, attracting support. Members suggested addressing a provision on cooperation with competent international organizations, using language from the BBNJ Treaty.

Members also discussed whether a provision on the adoption of standards and guidelines prior to the consideration of a plan of work for exploitation should be placed under this regulation.

An observer noted that other kinds of data, in addition to environmental information, should be shared and exchanged.

On a provision on developing incentive mechanisms, a regional group stressed that capacity building precedes technology transfer, requesting to reflect this in the regulation. A delegate suggested replacing “market-based instruments” with “commercially available technology.”

On the rights and legitimate interests of coastal states (regulation 4), many delegates pointed to scheduled work under a small group coordinated by Portugal. A group of members highlighted their prior submission on coastal states, noting it had not been incorporated in the consolidated text.

Delegates discussed whether the contractor or the ISA should be responsible for identifying all potentially affected coastal states, or whether they should self-nominate. Many supported including a reference to REMPs, while others suggested its deletion.

Some stressed that UNCLOS Article 142 (rights and legitimate interests of coastal states) should constitute the only basis for consultations, while others suggested a broader approach. A delegate urged developing common understanding on Article 142, noting it addresses two things: on the one hand, activities in the Area with respect to resource deposits in the Area, which lie across limits of national jurisdiction, for which consultation, prior notification, and consent by coastal states is required; and on the other, the rights of coastal states to take measures consistent with the relevant provisions of UNCLOS Part XII (protection and preservation of the marine environment) to prevent, mitigate or eliminate grave and imminent danger to their coastline from pollution or threat thereof or from other hazardous occurrences resulting from or caused by any activities in the Area.

A member suggested the contractor be notified in cases of harmful effects as they are still required to respond or mitigate these effects, querying how to ensure the contractor may prevent an escalation to serious harm. Further suggestions focused on restructuring, standardizing language, and placing provisions in other parts of the regulations.

Observers suggested, among other things, operationalizing the polluter pays principle, ensuring that liability for environmental harm rests with the contractor, and including consultations with Indigenous Peoples.

Regarding the qualified applicant (regulation 5), on the use of vessels and ports, several members welcomed the intent of the provision, but suggested further discussion. A member expressed support for a provision on the contractor’s track record, while another considered it too broad. A delegate suggested cross-referencing regulation 83 bis (beneficial ownership registry).

A member suggested, attracting mixed reactions, only using vessels flagged to registries of the sponsoring state instead of any ISA member state. Some delegates opposed it, noting it might be too limiting, while others welcomed further discussion. Several members supported the drafting of a provision noting that the ISA shall not accept an application if the sponsoring state has not enacted legislation pertaining to activities in the Area that complies with the requirements of regulation 105 (sponsoring states).

On the certificate of sponsorship (regulation 6), a member suggested addressing the content of the applicant’s statement in the sponsorship certificate and its relationship with ongoing discussions on effective control.

On the form of applications and information to accompany a plan of work (regulation 7), a member suggested streamlining the regulation, moving most of its content in an annex. Discussions focused on, among other things:

  • the relationship between parent, holding and/or subsidiary companies regarding liability, with some delegates noting that a cross-cutting approach on parent companies in the regulations would assist closing the liability gap;
  • information on the applicant’s financial and technical capability and resources to carry out the plan of work, with many members noting the applicant must be in a position to demonstrate access to required financial and technical capability at the time of the application, while others noted financial arrangements may be conditional to the approval of a plan of work or exploitation contract;
  • provisions on a test mining study and the closure plan; and
  • a provision addressing the staff’s code of conduct.

Discussions on the area covered by an application (regulation 8) addressed a bracketed provision noting that the area under application must be covered by a REMP, which many delegates suggested retaining. Members further discussed a provision on activities managed by any other international regime or organization, expressing divergent opinions.

Many members suggested drawing language from the BBNJ Treaty, referring to “relevant legal instruments and frameworks and relevant global, regional, subregional, and sectoral bodies.” Some urged coherence with international obligations under other processes. A delegate noted that requesting the contractor to indicate whether the area is designated, managed or under active consideration by any other international regime or organization may be a challenging task. Another highlighted the need to distinguish between initiatives by other regimes or frameworks and the obligation to exercise reasonable regard for other activities in the marine environment.

On Thursday afternoon, newly-elected President Myklebust resumed the negotiations on the consolidated text. On receipt, acknowledgment, and safe custody of applications (regulation 9), a delegate suggested retaining a provision on notifications that the Secretary-General shall submit within 30 days of receipt of an application for a plan of work. Another noted that most of the provisions have been moved under regulation 10, other than the notification to the Finance Committee, suggesting including it.

On the preliminary review of an application by the Secretary-General (regulation 10), delegates exchanged views, without reaching agreement, on two alternative drafting suggestions related to potential applicants claiming preference and priority.

Some members noted that the envisaged period of 60 days for lodging an application in cases of an applicant who claims preference and priority in an area under an exploration contract and confirms the intention to apply for a plan of work for exploitation is too short and should be extended to 180 days. Others suggested diffusing powers on the preliminary review of applications, suggesting a role for the LTC.

On cases of more than one application for the same area and same resource category, delegates expressed divergent opinions. A member suggested providing the Enterprise with the opportunity to decide whether it intends to carry out activities in a reserved area.

Many members supported that regulation 11 should be titled “publication, notification, and review of the application” rather than specifically referring to the environmental plans and management systems, further suggesting streamlining and simplifying the provisions. A group of countries stressed that the outcomes of the intersessional working group on stakeholder consultations were not included in the consolidated document.

Many delegates underscored that the applicant should respond to all comments received rather than “as appropriate.” Delegates further debated: what the consultation process should cover; whether all non-confidential documentation should be posted on ISA’s website indefinitely or for 90 days; whether to keep reference to the “general public” in relation to consultations; and the potential for the LTC to seek advice from independent experts when necessary and, if so, the relevant modalities.

A couple of members noted, opposed by others, that the application should not be published on the ISA website but rather the environmental management plan, which should be the focus of consultations,

On the rules for considering applications (regulation 12), members discussed, among other things: when the LTC should commence the consideration of an application; deferring the consideration of an application; the consideration of an application expeditiously and within a time-bound period; what the LTC should take into account when considering the proposed plan of work; and a reference to REMPs.

On the commencement of the consideration of an application at the next LTC meeting after receipt of the application, many delegations supported deleting “within 30 days of its receipt of the application.” Some suggested retaining a provision noting that consideration may commence provided that relevant notifications and information have been circulated 90 days prior to the commencement of the LTC meeting. A delegate requested the reinsertion of the option of 275 days, noting it as the average time among LTC meetings.

A member supported the LTC deferring consideration of an application in cases where there is more than one application simultaneously. A delegation cautioned that if the LTC does not make a recommendation in due time, the Council can approve the plan of work anyway.

Members discussed whether imposing a time limit to the LTC for considering applications is desirable. Some suggested replacing that the LTC shall consider applications “expeditiously” with “in an efficient manner.” A member supported 180 days as a limit for the LTC to deliver its recommendation.

Delegates considered two alternative formulations of a provision on applying UNCLOS, the 1994 Agreement, and the ISA RRPs in a uniform and non-discriminatory way, without reaching consensus.

A delegation queried the omission of prior proposals that attracted no opposition and the inclusion of controversial ones in the consolidated text, further noting that following suggestions from contractors rather than members is not acceptable.

Members decided to delete a draft regulation on general obligations of contractors (regulation 12 bis), noting its provisions are covered elsewhere. On the assessment of applications (regulation 13), which currently includes two alternatives, a member emphasized that their suggested version offers a logical sequence and avoids regulatory confusion. He explained that the LTC needs to assess whether the applicant is qualified and whether the application meets all standards and requirements.

Some members supported the alternative proposal, while others expressed flexibility. A delegate noted the applicant should be evaluated upon the application and during the activities. Some suggested retaining language on REMPs. Others reiterated that the applicant needs to demonstrate financial and technical capabilities upon application, noting no assessment should be made based on expectations, and emphasizing that commercial viability is a prerequisite for an application.

On Monday, 25 March, President Myklebust invited delegates to resume discussions on the assessment of applications (regulation 13).

Several members pointed out duplicative provisions. A delegate cautioned against the LTC making recommendations based on the mere presence or absence of information, stressing that qualitative assessment is required. Many supported a “much clearer structured” alternative option proposed by Germany, while others expressed flexibility.

Discussions focused on: the contractor demonstrating sufficient financial resources at the time of the application; cultural rights; and the relationship with other competent international organizations, with many delegates suggesting retaining the relevant provision.

A delegate suggested the LTC include in its recommendations to the Council whether: the applicant is qualified; both the sponsoring state and applicant meet the requirements; and all fees are paid. She added that all requirements and further details can be placed in a guideline.

A delegate suggested retaining a provision on assessing equipment, operational procedures, and processes in relation to their environmental impact in accordance with the best available techniques, best environmental practices, and the applicable standards.

A member suggested deleting provisions on: the contractor demonstrating a satisfactory record of past performance “in other jurisdictions”; and the LTC determining whether the applicant is under the effective control of the sponsoring state and relevant domestic legislation has been enacted. He further noted that the reference to climate change is not appropriate as there is no evidence of a relationship between deep-sea exploitation and climate change. Another delegate opposed, suggesting retaining the reference to climate change and adding language on sea-level rise and ocean acidification.

A delegate suggested deleting a criterion on the applicant and, if applicable, its parent company, legal predecessor, senior management, and controlling shareholders, having satisfactorily discharged their obligations to the ISA, noting it cannot be applied to state-owned enterprises, jeopardizing non-discrimination.

Observers stressed the need to consider contractors’ debt-equity ratio to assess financial capabilities. They emphasized deep-sea mining activities pose a risk of undermining the UN Fish Stocks Agreement, the UN Framework Convention on Climate Change, the Convention on Biological Diversity, the Convention on Migratory Species, the UN Declaration on the Rights of Indigenous Peoples, and other related treaties and agreements.

Observers further noted that: references to climate change and strategic environmental goals and objectives need to be retained; the argument that minerals are needed for green transition is flawed; specific coordination involving submarine cables is required; and underwater cultural heritage needs to be addressed.

On amendments to the proposed plan of work (regulation 14), some members suggested the Secretary-General be responsible for administrative functions, while the LTC addresses technical considerations, such as whether the criteria for public consultation are met. A participant suggested clarifying the criteria for determining if an amendment is significant, leading to public consultation.

A few delegates opposed additional provisions on consultation, noting that this may lead to “information review loops” and may affect decision-making processes on the review of applications. They added that any additional consultation should be done in the timeframe prescribed in regulation 11 (publication, notification, and review). An observer welcomed the opportunity for meaningful public consultation in the event of a substantially revised application.

On the LTC recommendation for the approval or disapproval of a plan of work (regulation 15), a delegate suggested removing all provisions regarding disapproval, attracting some support. Another suggested removing bracketed provisions on conditions for disapproving a plan of work, including: areas of particular environmental interest; other areas designated for preservation for reasons of special biological, scientific, or other significance; areas that have not been subject to prior exploration activities; and areas not covered by a REMP.

Others preferred clarifying the cases where the LTC does not approve a plan of work. Some members suggested using specific assessment criteria to avoid cases where it is unclear why the LTC refuses an application. A delegate suggested an additional criterion that a plan of work should not undermine binding goals set out in other global environmental frameworks.

Delegates discussed whether the LTC “shall” or “may” recommend approval of a proposed plan of work, without reaching consensus. A member suggested adding that the LTC may recommend approval if it complies with relevant regulations and “has sufficient information to determine that all requirements are met.” He added that the “sufficient information” requirement is included in various international frameworks to address cases of high scientific uncertainty, including the Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Protocol), the Protocol on Environmental Protection to the Antarctic Treaty (Madrid Protocol), and the UN Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention).

Some delegates expressed strong support for a provision that any recommendation for approval shall be accompanied by a summary of any uncertainties inherent to the plan of work and how the applicant should address them. A delegate proposed that no national of the sponsoring state should take part in the relevant LTC recommendation, ensuring the LTC’s independence and avoiding potential conflicts of interest.

A regional group strongly supported a provision disapproving a plan of work if it would permit monopolization or significant control of the production of any single mineral or metal produced globally.

A few members stressed that if the applicant meets all requirements, the LTC must recommend approval of a plan of work. Another highlighted the need for clarity both for the LTC and for applicants on the grounds for refusing approval. A member suggested deleting a provision on the LTC being unable to determine whether the plan of work complies with all requirements. He noted the Council should trust the LTC’s competence.

Many supported keeping the references to REMPs and areas of particular environmental interest. Delegates expressed divergent opinions about provisions on: strategic environmental goals and objectives; time limits for the LTC’s considerations; and other uses, including submarine cables.

An observer supported disapproving a plan of work because of scientific uncertainty or inadequate and insufficient information. Another suggested avoiding pathways to automatic approval, emphasizing the need to include references to REMPs in the regulation. He noted that REMPs are policy documents that do not have direct legal effects, stressing a Council decision or regulation is required to give measures or elements contained in REMPs enforceable legal protection.

On the consideration and approval of plans of work (regulation 16), delegates queried a provision that the Council shall consider the reports and recommendations of any other relevant ISA subsidiary body. A member stressed that the LTC should consider such reports.

Several delegates and observers requested deleting a reference providing the approval of a plan of work if the Council does not make decisions within the established time. A few members supported its retention. A couple of delegates suggested including a provision on allocating additional time, if needed, for the Council to make a decision.

Some members noted that two provisions presented as alternatives in the consolidated text refer to different issues, and both should be maintained. One addressed the disapproval of a plan of work if any requirement of the assessment of applicants and applications (regulation 13) is not fulfilled, while the other requests the Secretary-General to ensure that a contract to be concluded incorporates all conditions outlined in the draft plan of work. A delegate and a regional group suggested deleting both provisions.

A delegate stressed that the LTC, not the Council, should assess applications, supporting, with a few others, deleting a provision on the Council disapproving a plan of work if any of the requirements of regulation 13 are not fulfilled. In contrast, another delegation suggested adding to the provision a cross-reference to the list of elements the LTC should take into account under the rules for considering applications (regulation 12).

On the exploitation contract (regulation 17), delegates agreed that seven days is a reasonable amount of time for the publication of the contract in the Seabed Mining Register. Some delegates and observers noted that upon the Council’s approval of a plan of work and “upon its request,” the Secretary-General shall prepare an exploitation contract.

On rights and exclusivity under an exploitation contract (regulation 18), members discussed a provision aiming to ensure that no other entity operates in the contract area for a different category of resources or otherwise in a manner that might interfere with the rights granted to, or operations of, the contractor, with many requesting clarifications.

Some members expressed concerns with changes in the regulation as included in the consolidated text and reserved the right to make additional written comments. They insisted on reinstating a provision noting adverse impacts from activities in the Area must be limited to the contract area. They stressed, among other things, that cross-contamination and overlapping pollution will: make it impossible to ensure compliance; stifle innovation; and put coastal states at risk. A delegate further underscored that obligations under UNCLOS Article 194 (measures to prevent, reduce and control pollution of the marine environment) equally apply to areas beyond national jurisdiction, preventing pollution spreading.

A member stressed that all activities under an exploitation contract, including exploration activities, should be regulated by the exploitation RRPs. A delegate noted that conferring exclusive rights under an exploitation contract means that a provision on not permitting other entities’ operations is redundant.

On the obligations of the contractors (regulation 18 bis), delegates discussed the use of vessels and ports; contractors’ liability, parent, and subsidiary companies; and a reference to REMPs as an instrument that contractors shall comply with. Several members queried the omission of their previous proposals in the consolidated text.

Several members stressed that contractors shall comply with relevant REMPs in addition to their contracts and RRPs of the ISA. Some noted that REMPs are not legally binding. An observer noted the need to define RRPs in the glossary.

A delegate suggested amending a reference to provide that contractors shall “only” use vessels flagged to registries of ISA members and only use ports of ISA members, noting it is essential for a comprehensive inspection and compliance regime. Several members raised concerns about the proposal being too limiting. A delegate considered the provision outside ISA’s mandate. Another queried the feasibility of providing information on the use of ports at the moment of the application. A few delegations suggested bracketing the provision.

A member noted the need to define “ultimate parent companies” in the glossary. A delegation queried the deletion of a previous version of this provision establishing responsibility for all aspects of the contract, rather than just for damage.

On Tuesday, 26 March, delegates continued their discussions. On the termination of an exploitation contract (regulation 18 ter), members discussed whether to retain, among the grounds for termination of a contract, the expiry of a contract without renewal.

On the suspension or termination becoming effective 60 days after the Secretary-General’s written notice, a delegate noted the period is too long for cases where ISA terminates the contract. An observer pointed out that regulation 21 (termination of sponsorship) provides that the “contract terminates automatically” under some circumstances.

A regional group suggested, attracting some support, including a provision to ensure that the termination of a contract does not relieve a contractor of any obligation or liability. A few delegates noted that it would be helpful to understand the grounds for suspension, suggesting amending the title by adding “suspension.”

On joint arrangements (regulation 19), some delegates pointed out the absence of a previously suggested provision on the operationalization of joint ventures. A participant stressed that “sound commercial principles” regarding joint ventures with the Enterprise need to be defined.

On terms and renewals of exploitation contracts (regulation 20), delegates agreed that the maximum term of an exploitation contract should be 30 years from the date of execution of the contract. Most agreed the renewal period should be for a maximum of five years, with one member suggesting ten.

Many insisted that a new revised plan of work needs to be presented in all cases of contract renewal, including revision of EIAs, training commitments, and financial arrangements, rather than only in cases of material changes according to regulation 57 (modification of a plan of work by a contractor).

Delegates further discussed whether other information, such as inspection and compliance reports, monitoring, and compliance data, third-party or whistle-blower complaints, and legal actions against the contractor, should be included in an application for contract renewal. Many supported its inclusion; a few objected to the inclusion of “third party or whistle-blower complaints”; some requested clarifications on “compliance data.” Several delegates supported a provision on a consultation process in cases of renewal, with some suggesting cross-referencing regulation 93 ter (consultations with coastal states).

Some members underscored that a deleted criterion for renewals on the cumulative environmental impact not exceeding the applicable threshold set by the relevant REMP should be retained. Another suggested all related contractual obligations, such as insurance coverage, should remain in force for the renewal period.

Members further offered editorial comments and discussed whether: the LTC “shall” or “may” recommend the renewal of a contract if the relevant criteria are fulfilled; and the exploitation contract “shall” or “may” remain in force until the renewal application has been considered, without reaching consensus.

Observers called for more stringent renewal procedures. They cautioned against awarding the maximum term for an exploitation contract by default, highlighting that a third-party or whistle-blower mechanism does not yet exist in the ISA.

President Myklebust noted agreement on the maximum term of 30 years for an exploitation contract from the date of execution of the contract and added that all interventions will be used to further refine the consolidated text.

On the termination of sponsorship (regulation 21), several members raised concerns over the inclusion of a provision noting that the contractor must suspend its activities in case of non-compliance, if instructed by the Secretary-General. Some stressed that suspension in cases of non-compliance should be immediate and automatic. A couple of members noted the provision was included following a contractor’s proposal, adding it should have been discussed by the Council prior to its inclusion in the consolidated text.

On the exploitation contract terminating automatically if the contractor fails to obtain a sponsoring state within the required period, several delegations requested deleting the exemption “unless the Contractor has sought the Council’s consent to transfer its rights and obligations.” They noted that allowing contractors to continue exploiting without a sponsoring state would be unlawful according to UNCLOS.

Many delegates, including a regional group, pointed out that the Secretary-General “promptly” or “as soon as practicable” notifying ISA members of a termination or change of sponsorship introduces ambiguities. A couple of delegations suggested replacing “promptly” with seven days. A regional group and some members supported retaining a provision stating that terminating a contract does not relieve a contractor of any obligation or liability.

On the use of an exploitation contract as security (regulation 22), many delegates expressed concerns. They emphasized that the contractor may mortgage, pledge, lien, change, or otherwise encumber all or part of its interest under an exploitation contract “solely for the purpose of raising financing to effect its obligations and with the prior consent of the sponsoring state and the Council, following the relevant LTC recommendation.” They further requested reinstating a provision including requirements for the beneficiary of the encumbrance, including subscribing to internationally adopted standards for the extractive industries and being regulated through a national financial authority.

Many delegates underscored that the ISA shall not provide any funds or issue guarantees, becoming liable in financing contractors’ obligations. Observers suggested outlining a process for the contractors to attract consent by the sponsoring state and the Council for using an exploitation contract as security.

Delegates discussed the transfer of rights and obligations under an exploitation contract (regulation 23) under the Open-ended Working Group of the Council on the financial terms of a contract.

On the change of control (regulation 24), some delegates agreed that the definition of change of control could be moved to the glossary, noting that further discussions are required. Some suggested the Secretary-General notify the Council and the LTC on change of control within a specific period of time, such as seven days, rather than “promptly.”

Many noted the LTC, rather than the Secretary-General, should be responsible for activities regarding the environmental performance guarantee as well as for cases where a change of control may affect the contractor’s financial capability to meet its obligations. They stated that the functions are not administrative and should not be performed by the Secretary-General. They further underscored the Council should consider such matters for decision making. A delegate suggested addressing the links between provisions on change of control and the transfer of profit share. Another recommended taking land-based mining realities into account.

Observers emphasized that different scenarios of change of control may require different approaches, pointing to relevant practices under national jurisdictions and urging further discussions.

Regarding the documents to be submitted prior to production (regulation 25), members raised questions on: the purpose and content of the feasibility study; potential overlaps with test mining; and the links between the feasibility study and the plan of work.

A delegate pointed out the need to develop an annex detailing what the feasibility study entails and how it must be conducted. A member underscored that the LTC should examine all feasibility studies rather than only those subject to material change.

A member suggested including among the documents to be submitted with a contractor’s commitment letter to comply with the regulations and ISA’s RRPs, and compensate for any damage, particularly to the marine environment.

An observer stressed that feasibility studies are a commercial tool for contractors, not a decision-making tool for regulators.

On Thursday, 28 March, delegates resumed negotiations on the environmental performance guarantee (regulation 26), discussing, among other things: when the contractor shall lodge the guarantee; provisions on installments; grounds for reviewing and updating the guarantee amount; and whether the guarantee should be restricted to closure activities or applied widely for any liability.

On maintaining commercial production (regulation 28), delegates discussed, without reaching consensus, a provision noting that the contractor shall immediately suspend or reduce production when it is required to protect the marine environment “from serious harm or a threat of serious harm.” An observer suggested adding the next steps to be followed in cases of non-compliance.

On the reduction or suspension in production (regulation 29), a member called for the rationale for the reduction or suspension to be provided, as well as a timeframe for the relevant notification. Another stated that some elements from a previous alternative version of the draft regulation, such as minimizing waste generation, should be incorporated into the regulatory framework.

On the procedure for suspensions in exploitation activities (regulation 29 bis), a delegate supported the standalone regulation, noting it streamlines various regulations addressing forms of suspension. He noted this would prevent cases where contractors suspend operations indefinitely to avoid closure requirements, adding that such cases occur in land-based mining.

On risk reduction principles (regulation 29 ter), delegates discussed whether the term “incident” should be used and defined. They further discussed whether the contractor should reduce risks associated with harm or danger of harm to people, the environment, or material assets to the point where the cost of further risk reduction would be “grossly” disproportionate to the benefits of such reduction.

On safety, labor, and health standards (regulation 30), some delegates suggested referring to “relevant” rather than “applicable” rules and standards. Another queried what would constitute “relevant national laws” in the case of several sponsoring states. An observer proposed that international maritime safety and navigation rules should apply to all ships and voyages engaged in activities in the Area.

On human health and safety management system (regulation 30 bis), some delegates suggested adding a provision on independent verification of such systems by an internationally recognized provider. A member cautioned against including a provision on notification of every modification to the safety management plan.

On reasonable regard for other activities and infrastructure in the marine environment (regulation 31), some members supported the requirement to identify both current and planned uses of the marine environment. Delegates further noted that it is unclear whether reasonable regard obligations encompass due diligence.

On preventing and responding to incidents (regulation 33), several members emphasized that, in case of an incident, contractors shall issue the relevant notifications no later than 24 hours after they become aware of such an incident. A member noted that “incident” is not defined in the regulations.

On notifiable events (regulation 34), some delegates suggested reinserting a provision on seeking instructions from the compliance committee after the Secretary-General receives a contractor’s notification on an incident.

Closing Plenary

On Friday, 29 March, President Myklebust opened the Council’s last session of the first part of the 29th annual session of the ISA, inviting thematic consultation and working groups’ facilitators to deliver progress reports. The Council took note of the reports.

BRAZIL, supported by CHILE, requested to add an agenda item for the July 2024 session, titled: “Proposal to the Assembly of a list of candidates for the position of Secretary-General.”

COSTA RICA stressed, supported by IRELAND, that in past press releases from the Secretariat, members had requested corrections, which did not take place in a timely manner, requesting the Secretariat to address the matter. IRELAND added that references to the contribution of deep-sea mining to the global green transition in press communications are misleading.

NAURU drew attention to efforts to agree on a draft decision on safety at sea, addressing responsibilities of flag states, ISA obligations, the legitimate rights of contractors, and the establishment of a 500-meter safety zone around vessels conducting activities in the Area. She lamented that consensus could not be reached, noting discussions should continue in July 2024. She added that this does not prevent the Secretariat from conferring with the IMO under the existing MoU.

ARGENTINA and CHINA suggested conducting consultations with the IMO to clarify ISA’s applicable legal framework and powers regarding establishing measures for human safety at sea. ARGENTINA noted such outcomes would inform the Council’s decision in the July meeting. The REPUBLIC OF KOREA supported the Secretary-General in continuing to take the necessary measures, as appropriate. CHINA underscored that allowing observers in the negotiations of the exploitation regulations does not mean that similar modalities need to be followed in all Council discussions.

COSTA RICA, IRELAND, CHILE, FRANCE, and others noted that the suggestion of setting up exclusion zones around vessels is controversial. COSTA RICA and IRELAND stressed while technical cooperation between the ISA and IMO is ongoing, discussing this issue would require a Council decision providing relevant guidance. Together with FRANCE, ITALY, and CHILE, they called for considering all legal consequences before the July session, and insisted on a transparent discussion, including observers. CHILE called for an inclusive, transparent discussion and welcomed, with SPAIN, intersessional work with a view to reaching a decision in July.

Togo, for the AFRICAN GROUP, noted protection of human life at sea is of utmost importance, stressing that further discussions are needed in July to reach consensus and adopt a relevant decision.

CUBA commented on progress in the negotiations and condemned the embargo by the United States, noting it is also condemned by the majority of UN members.

TONGA stressed safety of life at sea is crucial and looked forward to a responsible approach for the July session.

BRAZIL outlined progress in the negotiations, adding that continuing discussions on issues of safety at sea in July will allow a constructive dialogue. She highlighted Leticia Carvalho’s candidacy for the position of ISA Secretary-General, stressing the need for inclusiveness, representativeness, geographical balance, and gender equity and equality in the ISA.

The UK suggested scheduling a further Council meeting in October or November 2024 to maintain momentum and foster progress.

The DSCC, on behalf of the environmental observer organizations, thanked those delegates who highlighted the need for effective protection of the marine environment and intervened in favor of inclusivity and transparency.

In his closing remarks, Secretary-General Lodge stressed that he was “impressed at the focused way the Council dedicated itself to making painstaking progress on the regulations over the past two weeks.” He expressed appreciation for recent voluntary contributions by Ireland, Mexico, the UK, and Portugal to the voluntary trust funds for the LTC and the Council. He highlighted the Global Call for Action for accelerating sustainable development through advanced deep-sea science and innovation, acknowledging Mauritius as the latest country to sign the global call. He thanked all participants for their contributions and support.

President Myklebust said the issue of safety at sea can be further discussed in July. Highlighting “remarkable headway” in consolidating the draft text of the exploitation regulations, he focused on the road ahead. He invited written submissions by 1 May 2024 and requested delegates to focus on identifying conceptual issues that would benefit from further discussions. He noted a briefing paper will be issued prior to the July meeting but not a new version of the consolidated text.

He further noted that during the two weeks of the Council’s deliberations, delegates addressed one-third of the consolidated text, adding that discussions will continue in July to complete a first reading, after which a new version will be issued. He urged delegates to pursue intersessional work with a view to reaching consensus on outstanding matters. He thanked all delegates and observers for their hard work, commitment, and support. He gaveled the meeting to a close at 12:50 pm.

A Brief Analysis of the Meeting

“This is the most important year for the Authority and the Council until now.” – Olav Myklebust

The International Seabed Authority (ISA) is standing at a crossroads. For the past decade, one of ISA’s main tasks has been the development of regulations for the exploitation of deep-sea mineral resources. Most agree that this is an arduous, complicated, and sometimes controversial task. But what makes 2024 so important, as stated by Olav Myklebust in his first words after he was elected Council President for the ISA’s 29th annual session.

In July 2021, Nauru, invoking an article of the 1994 Agreement of the UN Convention on the Law of the Sea (UNCLOS), triggered a two-year countdown to finalize the regulations for the start of commercial exploitation of mineral resources in the Area (the seabed, ocean floor, and subsoil beyond the limits of national jurisdiction), the so-called “two-year rule.” Two years later, despite the Council’s intensified efforts towards approving the appropriate rules, regulations, and procedures, and with a looming threat to submit a plan of work without the regulatory framework in place, ISA members agreed on a roadmap for further work. This roadmap comes to an end in July 2024, when the remaining work will be reassessed.

Mandated under the UNCLOS to organize, regulate, and control all mineral resource-related activities in the Area for the benefit of humankind as a whole, the ISA has to play a dual role: regulating a highly complex issue such as deep-sea mining and balancing the divergent views, interests, and aspirations of its members.

Certain members, including some holding exploration contracts, the first of which were issued back in 2001, seem eager to start commercial exploitation as soon as possible. On the other side, 25 members, following Denmark’s relevant announcement during this meeting, call for a moratorium, precautionary pause, or ban on deep-sea mining.

This brief analysis will discuss why the two-year rule and other elements could make 2024 the most important year in ISA’s history. It will address progress and challenges in the negotiations on the draft exploitation regulations. The focus will be on new issues that took central stage as well as long-standing ones. It will further offer a glance into the future towards the key meeting in July.

New Kids on the Block

For the first time, delegates arrived in Kingston, Jamaica, with a consolidated text of all the draft exploitation regulations. The consolidated text attracted positive comments as many members considered it a solid basis for further negotiations. Delegates stressed that while it allows focused discussions and mainstreaming, some provisions are repetitive, unclear, and/or redundant. They repeatedly reiterated the merits of simplicity and legal certainty.

But not everything was rosy with the new working modalities. Some delegates expressed concerns over the development and content of parts of the consolidated text. They noted previous suggestions that met little or no opposition were not included, while controversial ones were, including some proposed by deep-sea mining contractors without prior consultation with the Council. Other members suggested clearly indicating the proponent of proposals in future versions of the consolidated text. They further queried the nature of the “suspense document,” which includes provisions to be relocated under standards and guidelines, with a delegate murmuring: “I hope the suspense document is not the place where suggested provisions go to deep sleep.”

Furthermore, while some agreed with a proposal to hold informal, closed-door negotiations on specific issues that would benefit from in-depth deliberations, many were skeptical. They stressed that, while informal meetings can be useful, the process is not mature enough for such modalities, further emphasizing the need for inclusivity and transparency. Council members eventually decided to hold open thematic discussions instead. A number of Council members seemed relieved, after what one called a “sensible decision.

Having reached agreement on the working modalities, delegates could focus on the substantive part of their work, where some new issues surfaced. Environmental externalities were one such issue. While the economic concept of uncompensated environmental effects of production and consumption is not new in the negotiations, concrete discussions on whether and how to incorporate them in the payment mechanism with expert guidance took place for the first time.

Invited experts assisted delegates in their discussions on the methods available to estimate external costs of mining activities in the deep-sea. Some members said it would be premature to consider environmental externalities, noting they are neither included in UNCLOS nor in land-based mining. Many delegates stressed that incorporating such costs is of paramount importance as they reveal the true costs of deep-sea mining to humanity.

The short answer to the complex question on how to quantify the economic value of external environmental costs associated with deep-sea mining is that we cannot. There are currently no studies that explicitly estimate values for deep-sea ecosystems in the Area, and thus, it is impossible to estimate associated ecosystem service values.

Council members have a difficult decision at hand. As one delegate emphasized, “We can neither ignore these external costs nor close our eyes in front of this huge knowledge gap.” Many seem to agree that the rational way forward would be, according to expert advice, conducting primary valuation studies for key ecosystem services in the Area. Given the breadth of the knowledge gap, research efforts must be substantial for any meaningful outcome.

While concepts of the economic value of deep-sea ecosystems dominated the discussions on externalities, other conceptualizations of value, including Indigenous ones, fall outside the theoretical framework provided by environmental economics. Such considerations also arose in the thematic discussion on underwater cultural heritage. Delegates focused on intangible aspects of such heritage for the first time in an open Council setting, offering a different and useful perspective.

Last but by no means least on the list of new topics is the right to protest at sea and associated considerations. This topic emanated from a Greenpeace protest in an exploration contract area of Nauru Ocean Resources Inc. (NORI) in the Clarion-Clipperton Zone in the Pacific Ocean. While all members recognized both the right to protest and the right to conduct activities in the Area as legally recognized rights, they expressed divergent positions on the approach to be followed. Some suggested establishing safety zones around vessels and installations; others insisted that such matters follow under the jurisdiction of flag states, further criticizing the nature of the temporary emergency measures taken by the Secretary-General.

The Secretary-General issued temporary emergency measures under regulation 33 of the exploration regulations, including maintaining a safety distance from NORI’s vessel of at least 500 meters. Some delegates indicated that this was “an excess of jurisdiction or a misuse of power,” further emphasizing that regulation 33 aims to prevent serious harm to the marine environment, not protests at sea. 

Observers stressed that asserting a non-profit environmental organization, such as Greenpeace, presents a serious threat to the marine environment, while a commercial seabed mining company is acting for the benefit of humankind, is a “mind-bending contradiction.” The issue will be further discussed in July.

Progress and Challenges among the Usual Suspects

Measuring progress in negotiations is not easy, and this is also the case at the ISA. The consolidated text, however, may offer some relevant indicators. Indeed, one can easily ascertain that during the two-week meeting, in addition to holding thematic discussions, delegates addressed approximately one-third of the regulations contained in the consolidated text. While this is a rough progress indicator, a qualitative analysis is necessary.

Most delegates seem to agree that strides have been made. Delegates have reached consensus on some provisions, such as on the maximum term for an exploitation contract, which will be 30 years from the date of execution of the contract. However, some members expressed concerns that agreement is usually reached on minor and/or procedural issues and provisions, while larger and essential conceptual issues remain outstanding. One delegate noted that “reaching agreement on the number of days after which the ISA must publish the renewal of an exploitation contract on its website, 30 years from now, does not weigh the same as other issues at hand.” He recognized some progress but emphasized that many high-level controversial issues remain.

Among the issues discussed during this meeting, environmental ones, such as environmental impact assessments (EIAs) and regional environmental management plans (REMPs), attract particular attention. On the EIA process, at the end of a lengthy discussion, a delegation noted that “after years of negotiations on the UN Treaty on Biodiversity of Areas Beyond National Jurisdiction (BBNJ Treaty), I would have expected we all agree that scoping should precede an EIA.” Discussions on how to incorporate REMPs in the regulatory framework are also complex as, while all delegates agree on their importance, not all are on the same page regarding their legal standing.

Other issues that require further work are the rights and interests of coastal states, as well as test mining, where discussions revealed the potential need for amendments to the exploration regulations to effectively regulate test mining. As a delegate noted: “As appealing as it may sound, conducting test mining in a mid-phase between exploration and exploitation may trigger more uncertainty.”

Economic considerations are no less challenging. Among the many issues on the payment system and mechanism, delegates also addressed equalization measures, aiming to provide a level-playing field for contractors and sponsoring states regarding taxation. The establishment of an environmental compensation fund was also discussed, with some complaining that it is challenging to negotiate the fund’s modalities prior to agreement on its purpose.

Likewise, issues around inspection, compliance, and enforcement attracted disagreements, particularly the establishment of a compliance committee with two options on the table: a standalone compliance committee or one under the Legal and Technical Commission (LTC). With members expressing divergent views, one noted that this “may indicate deeper disagreements on LTC’s role and powers.” With repeated unanswered calls by the Council to the LTC to hold open sessions, an observer stressed that “skepticism over LTC’s role might diminish if it were to be more open and transparent in its proceedings.”

Most delegates seem to agree that all of these issues, together with a multitude of others, will need to be resolved, and doing so in a couple of months may just be impossible.

Eyes on July

As delegates exited the Jamaica Conference Centre towards the empty Good Friday streets in Kingston, they had their work cut out for them. Intersessional work across various fronts and a 1 May deadline for written submissions means there will be no rest for the weary before the second part of the Council’s 29th session in July.

But there are many uncertainties in the near future. Will an application for a plan of work for exploitation be submitted prior to the completion of the regulations? And if it does, what will be the implications be for the ISA and its members and observers, not to mention humanity as a whole?

What will be the path forward on complex and controversial issues such as environmental externalities?

Will there be a fruitful discussion on a general environmental policy in the Assembly? Will the ISA strategic environmental goals be drafted and agreed upon? And if yes, what will the consequences?

Will the upcoming election of the Secretary-General, who provides general leadership for the ISA, affect its operations and priorities?

2024 indeed may be the most significant year for the ISA so far.

Further information