Update on Part II of the 29th Session of the Negotiations on Deep-Sea Mining Exploitation Regulations

As detailed in our previous insights on the topic of deep-sea mining,¹ the ISA is the autonomous international organisation established under the 1982 United Nations Convention on the Law of the Sea (“UNCLOS”). The ISA has been working on developing the Exploitation RRPs since 2014.

The ISA Council completed a first reading of the consolidated text of the draft Exploitation RRPs.² This is a major breakthrough. After ten years of work, the draft Exploitation RRPs have been read in full. However, this does not mean that the draft Exploitation RRPs are final, there remain a number of outstanding issues on effective control, underwater cultural heritage, environmental thresholds and financial mechanisms to list but a few.

Three topics that were discussed during the second part of the 29^th Session are the test for effective control, the definition and role of underwater cultural heritage and the development of environmental standards and guidelines. Under the draft Exploitation RRPs, only “State enterprises or natural or juridical persons which possess the nationality of States or are effectively controlled by them” can apply for a plan of work to exploit the deep seabed under the ISA’s jurisdiction.³ Not only is effective control by a member State of the ISA a precondition to apply for a plan of work, it is also a continuing requirement during the lifetime of the Exploitation Contract.

The latest discussions have focussed on the test for effective control. If regulatory control is to be the test, risks and uncertainty could arise from the potential differences in domestic laws, potential “forum shopping” by deep-sea mining companies and an undermining of the coherence of the ISA’s framework. There are also concerns in adopting an economic effective control test, as this could risk undermining existing arrangements between State and Contractor company and the effective participation of developing countries. Any revision of the provision on effective control will need to include a clearly defined test for effective control, addressing liability of the Sponsoring State, enforcement and ensuring the integrity of the ISA. Prospective Contractors will require certainty on the test for effective control prior to the preparation of their application for a Plan of Work.

Underwater cultural heritage was also discussed at length during the second part of the 29^th Session. The drive by some ISA delegates to protect intangible cultural heritage, including ‘pure’ intangible cultural heritage (i.e., not directly tied to any tangible underwater cultural heritage) has resulted in a lack of clarity in the current draft Contractor’s obligations. Draft Regulation 35 requires Contractors to notify and cease all activity within 24 hours of any finding “of any human remains of an archaeological or historical nature, or any object or site of a similar nature.” First, a more practical approach would have the Contractor explore any underwater cultural heritage during the consultations for the preparation of the Environmental Impact Assessments. Second, the short timeframe for notification and the wide definition of “human remains and objects or sites of archaeological or historical nature” is likely to result in over-notification for fear of non-compliance. In addition, the current draft Regulation 35 is unclear on the provision of replacement areas or compensation for any Contractors needing to terminate their exploitation activities in an area where underwater cultural heritage is potentially found. The discussion amongst the ISA’s delegates also included alignment of the definition of underwater cultural heritage with UNESCO’s definition and better alignment with other relevant provisions of the draft RRPs. Further clarification of the definition of underwater cultural heritage and draft Regulation 35 is required to set clear obligations for member States and Contractors.

Finally, in relation to draft Regulation 45, the ISA delegates discussed the need to develop environmental standards and guidelines for: (i) chemicals, waste and discharge from production; (ii) thresholds for toxicity levels in sediment plumes (i.e., the trails of sediment created by lifting/ discharging nodules or discharge water underwater); (iii) greenhouse gas emissions; and (iv) vibrations, noise and light pollution. These thresholds will be at the heart of the ISA’s framework as they will determine the scope of activities and the environmental thresholds Contractors must operate within.

The President of the ISA Council has committed to providing a revised version of the consolidated text in November 2024, with a list of proposed standards and guidelines.

Finally, a new Secretary General to the ISA was elected. Leticia Reis de Carvalho, a Brazilian oceanographer and U.N. Environment Programme official unseated Michael Lodge, who had headed the ISA for the last eight years. Ms. Reis de Carvalho will assume office on 1 January 2025 and will have to balance the competing interests of the member States calling for a precautionary pause and those wanting to initiate commercial exploitation of deep-sea minerals as soon as possible.

The 30^th Session of the ISA will be held in March and July 2025.

¹ Pivotal year for deep-sea mining; Deep-sea mining: Running out of time?; Deep-sea mining: risk and uncertainty;

Legal Uncertainties Muddy the Waters for Deep-Sea Mining’s Future; Coming soon? Updates on the Latest Round of Negotiations of the Draft Deep-sea Mining Regulations: Environmental Considerations.

² Int’l Seabed Auth. Council, Draft regulations on exploitation of mineral resources in the Area – Consolidated text (ISBA/29/C/CRP.1, 16 Feb. 2024) (Consolidated draft of the Exploitation RRPs discussed at the 29^th Session of the ISA Council), Accessible at: https://www.isa.org.jm/wp-content/uploads/2024/02/Consolidated_text.pdf.

³ Draft Regulation 5 in the latest draft of the Exploitation RRPs.