By Bruno Costelini
Oceanographer and PhD candidate in Law at Durham University
In the last column I mentioned how at some point reality imposes itself, and the boundless nature of the effects of human activities in the oceans counter any artificial delimitations set up by the UNCLOS or any other international regulation. This week we have just witnessed the opposite, with the Republic of Nauru addressing a letter to the International Seabed Authority (ISA), and invoking a clause in the 1994 Implementation Agreement (IA) to trigger a two-year deadline for exploitation regulations to be in place. So here we see International Law trying to outpace the realities of deep seabed mining.
When the IA was signed some 27 years ago it sought to appease some of the more commercially-minded States, effectively displacing many of the imagined attributions of the ISA and its Enterprise. By doing this it replaced the centralized system of exploration and exploitation activities with a more regulatory-type of institutional architecture, in line with capitalist and liberal thinking that had overcome the ‘socialist’ and ‘cooperative’ organizational schemes thought of by the original UNCLOS negotiators.
Hence the existence of such clauses as the one now called by Nauru, a small Pacific island with no real mining capabilities but who has associated itself with Canadian company DeepGreen Metals. In the letter the President of Nauru informs the ISA of its intention to apply for an exploitation Plan of Work within two years’ time, in accordance to Section 1, 15 (b) of the IA.
That disposition comes as trigger mechanism to push for regulations to be approved once a State that presumably has already conducted exploration for the regulatory period, and now is intent on pursuing the commercial activity of exploitation. Similar mechanisms had already triggered in the past the negotiations for exploration negotiations in 1999, and the extension of exploration contracts from 10 to 15 years. But now those terms are ending and Nauru has put forth its intention.
This has led to series of news pieces and alerts from environmental groups that exploitation would begin right away, too soon since according to them the technology is still not ready, and the regulations are not yet in place, even though they have been under negotiation for some five years now. These have stalled since the start of the pandemic, but the main regulations are mostly drawn out, and environmental guidelines have just gone through a round of public consultation, one whose outcomes are still to be considered.
The fact is knowledge of the deep seabed remains precarious. Even though loads of information gathered by contractors during their exploration contracts have been centralized by the Authority, no real assessment of the impacts has yet seen the light of day. The MiningImpact project sponsored by the European Union and carried out mostly German researchers is still the closest we have from that. The small-scale impact simulation was done in the 1980s, with perhaps obsolete technology, but still, the environment has not recovered.
In any case, the IA clause does not mean Nauru’s or any other proposed Plans of Work will be fast-tracked in case regulations are not finalized soon. It means they will be evaluated according to any provisionally adopted regulations, as well as the Convention and other regulations from the ISA. In theory, this could mean an adaptation of the current exploration regulations to exploitation.
But even if that is the case, surely the ISA should work hard to have the actual exploitation regulations in place, allowing thus for a solid and specific assessment of the proposed Plans. If those follow the precautionary approach and the general environmental clauses in the UNCLOS, that should be enough for any unreliable Plan to be rejected or altered to fit the standards judged to not be harmful to the environment.
In practice though, all bets are off. The ideal scenario would see a series of simulations and modellings being carried out before any such Plan of Work be put in place. Baseline knowledge, not only of the directly affected areas, but of larger extensions of the seabed and water column should be gathered for years, the ecosystem better understood and interconnections better explored, so we could have a real estimate of the value of seabed mining versus its anthropogenic footprints. If the law imposes itself at this point, certainly reality will push back in the near future, and then we will have to account for our decisions.
 See ISA Press Release https://www.isa.org.jm/index.php/news/nauru-requests-president-isa-council-complete-adoption-rules-regulations-and-procedures
 15. The Authority shall elaborate and adopt, in accordance with article 162, paragraph 2(o)(ii), of the Convention, rules, regulations and procedures based on the principles contained in sections 2, 5, 6, 7 and 8 of this Annex, as well as any additional rules, regulations and procedures necessary to facilitate the approval of plans of work for exploration or exploitation, in accordance with the following subparagraphs:
(a) The Council may undertake such elaboration any time it deems that all or any of such rules, regulations or procedures are required for the conduct of activities in the Area, or when it determines that commercial exploitation is imminent, or at the request of a State whose national intends to apply for approval of a plan of work for exploitation;
(b) If a request is made by a State referred to in subparagraph (a) the Council shall, in accordance with article 162, paragraph 2(o), of the Convention, complete the adoption of such rules, regulations and procedures within two years of the request;
(c) If the Council has not completed the elaboration of the rules, regulations and procedures relating to exploitation within the prescribed time and an application for approval of a plan of work for exploitation is pending, it shall none the less consider and provisionally approve such plan of work based on the provisions of the Convention and any rules, regulations and procedures that the Council may have adopted provisionally, or on the basis of the norms contained in the Convention and the terms and principles contained in this Annex as well as the principle of non-discrimination among contractors.