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The fraught governance of deep-sea mining

By Ellycia Harrould-Kolieb, Postdoctoral Researcher in Climate Law and Policy and Catherine Blanchard, Assistant Professor of Public International Law at the Department of International and European Law, Utrecht University

As the 15th meeting of the Conference of the Parties (COP15) to the Convention on Biological Diversity (CBD) draws to a close in Montreal, calls are being made for parties to prohibit ecologically damaging deep-sea mining. It is at this meeting that parties are expected to agree to the post-2020 global biodiversity framework, which is set to guide the global biodiversity agenda for the coming decades. The main aim of this framework is to build towards the 2050 vision of living in harmony with nature. At its core this requires halting and reversing the loss of biodiversity, which is continuing at an alarming rate. Given this aim, COP15 is an important venue to discuss the risks that mining poses to the unique biodiversity of the deep-sea, much of which we are only just learning about.

The deep-sea is the final frontier for scientific exploration with ecosystems and biodiversity that remain largely unstudied. These ecosystems contain a wealth of biodiversity that does not exist elsewhere on the planet and is home to extremely long-lived and slow-developing species. But it is also the site of large mineral deposits, such as nickel and cobalt, that have caught the attention of industry who are interested in exploiting this resource for inclusion in various electronic devices, such as mobile phones and the development of ‘green’ technologies.

Given the lack of scientific knowledge of these ecosystems and the impacts that deep-sea mining could have on them, it is unlikely that mining could go ahead in any sustainable form. In recognition of this, increasing numbers of state and non-state actors have come out in support of a (temporary) moratorium on deep-sea mining, at least until more is known about the potential impacts to these fragile and irreplaceable ecosystems. This includes New Zealand, Chile, Germany, Palau, Fiji and Samoa, to name just a few. The European Parliament (para 184) has also called on the Commission and members States to support a moratorium. It is however France that has gone the furthest, calling for a complete ban on deep-sea mining, a position French president Macron presented at the start of the COP27 climate summit in Egypt. Many companies, including Google, BMW, AB Volvo and Samsung, are also pledging to avoid using minerals mined in the deep-sea in their products. Most recently the investment company Storebrand announced it will no longer invest in companies engaged in deep-sea mining (or those that dispose mine tailings in marine or riverine ecosystems or that derive more than 5% of their revenue from Arctic drilling). Citing the precautionary principle in its decision making, Storebrand noted that more scientific knowledge is needed before deep-sea mining can be considered environmentally or economically sustainable.

The exploitation of minerals in the deep-seabed of areas beyond national jurisdiction (known as the “Area”) is, as yet, unregulated (although the exploration for such minerals is regulated and permitted). In response to this governance gap, the International Seabed Authority (ISA) has been working to develop exploitation regulations for around a decade. However, some countries have suggested this work has been progressing too slowly and in 2021, Nauru, a small island developing state, triggered what is known as ‘the two year rule’. This rule essentially puts a two-year deadline (concluding in July 2023) on the adoption of rules, regulations, and procedures necessary to facilitate the approval of plans for the start of deep-sea mining.

The Council of the ISA (its executive organ) met most recently in November of this year (3rd part of the 27th session of the Council). The main agenda item was the continuation of negotiations of the Draft Exploitation Regulations. Under the format of informal working groups, the Council discussed provisions related to financial mechanisms (i.e. how will the benefits stemming from mineral exploitation be calculated and redistributed among States), implementation, compliance and enforcement, as well as institutional matters, which included textual negotiations on overarching provisions on principles, approaches and policies. In terms of environmental considerations, the Council continued its reading of provisions on the protection and preservation of the marine environment. These provisions describe, among other things, the different environmental obligations owed by sponsoring States, contractors and the ISA itself. States and observers are invited to submit comments and proposals for textual revisions until 15 January 2023, on the basis of which the text of the Draft Exploitation Regulations will be revised in order for the Council to discuss it further at its next meeting in March 2023.

In plenary, the Council studied the revised version of the draft Regional Environmental Management Plan (REMP) for the northern Mid-Atlantic Ridge (nMAR) prepared by the Legal and Technical Commission (LTC). REMPs are policy plans developed to oversee the management of mineral activities in a specific region. The nMAR REMP is the second REMP being developed after the adoption of a REMP for the Clarion-Clipperton Zone (CCZ) (and which was revised last year). A first draft of the nMAR REMP published earlier in the year had been criticized for not engaging enough with environmental protection considerations. A recent publication discusses these gaps, many of which, it argues, still remain in the revised version. Recognizing these gaps, and in light of the concurrent development of a standardized procedure for the development, review and approval of REMPs, the Council decided to postpone further discussions on the nMAR REMP (para 14) until the standardized REMP procedure is adopted by the Council. This decision, read together with Draft Exploitation Regulations (Reg. 44bis) that requires that an “application for a Plan of Work shall not be considered […] until and unless a Regional Environmental Management Plan has been adopted by the Council for the particular area concerned”, means that the consideration of potential plans of work might be significantly postponed, effectively placing a temporary moratorium until the standardized procedure for REMPs is agreed.

The November meeting of the Council also saw two new issues, amongst others, arise. First, the Council discussed the legal nature of the 2-year rule. While some States firmly believe that the invocation of the 2-year rule triggers a binding deadline, the majority of Council members are of the view that respecting the deadline should not prevail over the adoption of a robust text, especially in terms of environmental protection. Second, the different claims for a (temporary) ban on deep-sea mining prompted a discussion of whether such a moratorium would go against the rights of all States to conduct exploration and, eventually, to exploit minerals in the Area, and/or would prevent the ISA, as per its mandate, to adopt the necessary rules, regulations and procedures for mineral exploitation. Nevertheless, many states and observers are of the view that a moratorium is in fact compatible with the current state of the law; the right to exploit resources is not absolute and subject to activities ensuring the protection of the marine environment, which is only possible through a moratorium considering, as discussed above. the lack of knowledge on the impacts of mining on deep-sea ecosystems. It is expected that both perspectives will be revisited during the first part of the Council’s 28th session, planned for March 2023.

Extensive discussions were also held on test mining following the recent approval given by the LTC to contractor Nauru Ocean Resources Inc NORI for the testing of a polymetallic nodule collector under its contract for exploration in the Area. This approval, given under unclear circumstances, revived long-standing concerns about transparency within the ISA generally, and the LTC specifically. This concern is further reflected by the fact that while the proposals made by States and observers during the Council meeting are made available on the ISA’s website following each Council meeting, no official records of the meeting are kept. This makes it incredibly difficult for states and observers to keep track of discussions and understand how and why decisions are being made.

In light of this, we, along with our co-authors, put together an overview of the current state of deep-sea mining governance under the ISA, exploring the way environmental considerations are currently being discussed and negotiated within the Draft Exploitation Regulations. We hope that this paper can be a useful tool for states parties and observers in forming positions on the draft regulations and in crafting comments and proposals for the January 15th deadline, as well as for those engaged in COP15 to better understand the history of deep-sea mining discussions and how the regulations are taking shape. It now rests in the hands of negotiators, decision-makers and observers to shed light on deep-sea mining governance and truly make it sustainable, robust, clear and transparent.

Photo by Fernando Jorge on Unsplash