The struggle at the International Seabed Authority over deep sea mineral resources

In 1970, a resolution of the United Nations General Assembly declared the deep seabed, the Ocean floor and its subsoil beyond the jurisdiction of individual states (designated by UNCLOS as “the Area”), as well as the mineral resources of the Area, to be the common heritage of mankind¹. Newly independent states of the Global South had pushed for this. They intended to prevent a race for the appropriation of the deep seabed and its mineral resources and to ensure that all of humanity would benefit from deep sea mining. The hope at the time was that proceeds from deep sea mining could mitigate poverty and hunger. In the negotiations of UNCLOS, the member states of the “Group of 77” called for the establishment of an international mining company with exclusive exploitation rights over the minerals of the deep seabed beyond national jurisdiction. However, a number of industrialized countries insisted that private-sector companies should also be entitled to apply for mining licenses. The so-called parallel system was implemented in order to reconcile the two positions: On the one hand, UNCLOS provides for the establishment of an international mining company (the “Enterprise”). On the other hand, it allows for the licensing of individual applicants. Through a “site-banking” mechanism it seeks to safeguard opportunities for the poorer states to participate in seabed mining. According to this mechanism, an applicant for an exploration license must name two potential extraction sites of equivalent mineral value. If all requirements are met, an exploration right is granted for one area, while the other is “reserved” for future exploration and exploitation—either by the Enterprise or by an entity from a developing country. Since licenses are included in contracts that the ISA concludes with applicants, the latter are called contractors.

As a result of this parallel system more than 30 exploration contracts have been concluded to date with 22 contractors (https://www.isa.org.jm/exploration-contracts/)and with the consequence that the common heritage is now divided into numerous mining sites. Several private and state-owned enterprises have acquired the right to conduct mineral exploration on these sites. They can subsequently apply for mining contracts giving rights to commercially extract minerals once the regulations for exploitation currently being negotiated at the ISA come into force. This regime, thus, may lead to future exploitation taking place simultaneously on numerous different—adjacent and large—mining sites on the seabed, consequently increasing environmental harm from deep seabed mining. In addition to concerns about the potential multiplicity of future ISA mining contracts, and the environmental harm this may cause, it is unclear whether developing states will economically benefit. To this day, the Enterprise only exists on paper because the 1994 Implementation Agreement that was intended to strengthen the market orientation of deep seabed law, revoked obligations of the ISA member states to finance and transfer technology to the Enterprise.

UNCLOS requires the creation of a mechanism for the equitable distribution of economic benefits from deep-seabed mining beyond national jurisdiction, which should take into particular consideration the interests and needs of developing states. As long as the Enterprise has not commenced operations, only royalties paid by contractors to the ISA can be a source of income to be distributed through this mechanism². The ISA Council is currently negotiating the structure of royalties that ISA contractors shall pay in return for taking ownership of common heritage minerals. However, to date not even a draft text has been circulated for the legal rules on the sharing of benefits that are required by UNCLOS.

The group of African states is pushing harder to get the Enterprise up and running, and also for the ISA’s Council to negotiate the benefit-sharing mechanism. So far, they have succeeded in getting the ISA’s Council to establish the position of an interim director general of the Enterprise³. Some Pacific Island States are taking a different approach. Through the sponsoring of mining corporations who can thus apply for exploration licenses for mining sites reserved for the Enterprise and entities from developing states, they seek to participate in the benefits from deep seabed mining. Thus, for example, the Pacific Island State of Nauru sponsored the application of NORI, today a subsidiary of the Canadian corporation The Metals Company, to obtain an ISA exploration contract. State sponsorship is required by UNCLOS for all non-state entities that apply for a license, by the entity’s state of nationality or a state which effectively controls it. While UNCLOS assigns to sponsoring states the role as guardians of the common heritage, these states sometimes also hope for tangible economic benefits, for example through taxation of the sponsored entities⁴.

Since 2017, the ISA has been intensively negotiating mining regulations. The aim is to create an international Mining Code for mineral resources on the seabed beyond national jurisdiction, which will include spatial planning instruments, contract approval procedures, rules on environmental impact assessments, compliance monitoring and enforcement, public participation in decision-making, liability and the aforementioned benefit sharing mechanism, among other things⁵. Environmental regulations are playing an increasingly important role in the negotiations. The need for strict environmental regulations has been recognized over the years and is now unanimously accepted. However, it is clear that increased technical requirements and good management will not change the fact that mining will have harmful environmental consequences. Scientists predict losses of biodiversity and disruption to ecosystem functions provided by the Ocean, an important one being climate regulation. Sediment clouds and wastewater could affect entire ecosystems, while noise and light pollution throughout the water column could harm marine life including whales and dolphins^6,7.

For the past 2 years, the government delegations to the ISA have been meeting at an accelerated pace, for around eight weeks a year at the organization’s headquarters in Kingston, Jamaica. Representatives from science and civil society are also taking part. The duration and frequency of the meeting as well as the intensity of negotiations pose particular challenges for developing states. Yet, for some proponents of deep sea mining, the negotiations are progressing too slowly. In July 2021, Nauru triggered the so-called 2-year rule and requested that the exploitation rules be finalized within 2 years⁸. The 2-year period expired in July 2023, and there is concern that NORI, the contractor sponsored by Nauru, will apply for a ISA mining license despite the absence of agreed exploitation regulations. With this eventuality in mind, the ISA’s Council adopted in 2023 a decision that underlines that “commercial exploitation of mineral resources in the Area should not be carried out in the absence” of exploitation regulations. It further concludes that the establishment of a common understanding of the consequences of Nauru invoking the 2-year rule is still pending⁹. This means that the exact modalities of the licensing procedure in case of an application before the exploitation regulations are adopted are still to be clarified and agreed by the Council. ISA member states also agreed that they “intend to continue the elaboration of rules, regulations and procedures relating to exploitation … with a view to their adoption” in 2025¹⁰. However, for practical reasons it seems unlikely that this timeline will be met.

As a result of Nauru’s request, a fundamental ecological reorientation of the ISA that has been debated since 2021, becomes particularly urgent. Activists and some Indigenous Peoples’ representatives from the Pacific have long been campaigning for a halt to deep sea mining. Today, numerous actors are calling for a moratorium on deep sea mining, including even those states that have an economic interest in deep sea mineral extraction and whose companies hold ISA exploration contracts.

Calls for a moratorium on deep sea mining from science and industry have supported this development. In early 2021, the first wave of international companies (BMW, Google, Samsung and Volvo) spoke out in favor of a moratorium¹¹. They argued that due to insufficient knowledge the effects of seabed mining could neither be sufficiently assessed nor controlled. At least some of these companies may have also hoped that calling for a moratorium would benefit their reputation and, in some cases, promote recycling instead of new production. Their call has been joined by banks over the following years. In June 2021, more than 400 scientists published a call for at least a “pause” in mining in line with the precautionary principle, stressing too the insufficient knowledge and the potential for irreversible negative effects on the marine environment. Today, it is supported by more than 800 scientists from 44 states¹².

As far as governments are concerned, the Pacific Island States of Palau, Fiji, Samoa and the Federated States of Micronesia called for a moratorium at the United Nations Ocean Conference in 2022. In November of the same year, two states with ISA exploration contracts, France and Germany, also opposed the start of mining. In the meantime, other states joined in, including Brazil, Chile, Costa Rica, the UK, Canada, Portugal, Switzerland, Mexico, and Denmark. The terminology used by the governments (moratorium / precautionary pause) and their motivations differ. Many justify their stance by stating that there is too little knowledge about the potential environmental impact to be able to take responsible decisions to permit deep sea mining. A further consideration are the perceived weaknesses concerning the institutional capabilities and set-up to monitor and enforce rules (including those aimed to protect the environment and to ensure equitable sharing of benefits).

Another issue has not yet been sufficiently discussed: A significant proportion of global greenhouse gas emissions arise from the extraction and initial processing of mineral resources. Furthermore, mining is already causing biodiversity loss, pollution, and other serious ecological and social damage worldwide⁶. It is therefore urgently necessary to reduce and not expand raw material mining and to convert the economy into a circular economy, as required by the United Nations’ Sustainable Development Goal 12 (Sustainable Consumption and Production). Instead of “opening up” another source of mineral resources with deep sea mining, onshore mining should be restricted and made as efficient as possible, while increasing sustainability and respect of human rights. Companies, such as Nauru’s ISA contractor, argue that minerals from the seabed are necessary for the energy transition. Yet, this need is disputed. Scientific findings tend to show that land-based sources and minerals from recycling and re-processing of mining waste would be sufficient for a long time to come⁷. In addition, supply shortages can lead to alternative and innovative solutions, including reduction of raw material quantities for production and sufficiency in consumption.

Two conflicting positions shape the current contentious negotiations within the ISA: while some favor an early start to mining, based on a private sector exploitation logic, others advocate for a moratorium to protect the environment and promote alternatives such as responsible land-based mining and a circular economy. This conflict is part of the more general debate over the urgently needed social-ecological transformation and ‘just’ energy transition. The election of the ISA’s Secretary-General for the period 2025 to 2029 was expected to play a decisive role in determining the ISA’s direction during a pivotal time. British lawyer Michael Lodge, who occupied the office of Secretary-General from 2017 to 2024 has been accused of not sufficiently respecting the neutral role of this office and positioning himself in favor of a rapid start of deep sea mining. Germany explicitly critiqued this in a letter at the beginning of 2023. On 2 August 2024, with 79 votes to 34 the Assembly of the ISA elected Leticia Carvalho as new Secretary-General who will succeed Michael Lodge in 2025. It remains to be seen how this change will affect working conditions and the course of the ISA. One thing is certain, however: The Secretary-General’s influence is great. Together with the about 40 employees of the ISA’s secretariat, the Secretary-General coordinates and manages the daily work of the ISA, including preparation of documents for all organs of the ISA, coordinating meetings, preparing first drafts of decisions and managing the involvement of external consultants. Thus, the influence on the organization’s daily work and the negotiations of the mining code is strong.

The positions of important geopolitical players will also affect the future of deep sea mining. China may be particularly relevant in this regard. It is the largest financial contributor to the ISA (https://www.isa.org.jm/contributions-dashboard/), holds most ISA exploration contracts and is amongst the states with the biggest shares in both consuming and producing some of the metals that could be sourced from deep sea mining. Access to strategic resources could be the central argument for China not to join the moratorium group. Chinese companies that are state-backed could have a competitive advantage compared to other ISA contractors, in that they may not have to raise funds or generate profits in the same way as private companies. The African group of states in the ISA, which is the largest country grouping and tends to work as a bloc, has not yet taken a clear position on the moratorium question. Some African states continue to hope for income from the sharing of revenue. Sometimes they also accuse the states of the Global North of double standards: Whilst being very committed to protecting the environment on the seabed, they do not address the disastrous consequences of land-based mining in the Global South to the same extent.

If the demand for a moratorium prevails and no mining contracts are granted, at least for a relevant time period, the question arises as to the future mandate of the ISA. One idea is that the organization should primarily be involved in coordinating scientific research. Such a new focus would be in line with UNCLOS which foresees the promotion and coordination of marine scientific research as one important task of the ISA (Articles 143(3), 239, 242, 244(1) UNCLOS). This new field would also need to be organized to be for the benefit of all of humankind and particularly developing states. Another task being discussed, is a closer involvement of the ISA in the implementation process of the new Agreement under UNCLOS on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction. A moratorium could be an opportunity to push back the prioritization of exploitation for commercial gain and to refocus on the basic idea of UNCLOS, namely fair and equitable benefit sharing in accordance with the common heritage of mankind.

The government delegates, scientists and civil society activists who regularly gather in Kingston should not only argue about exploitation rules. Instead, they should consider the future governance of the deep seabed within the context of planetary boundaries and the polycrisis. The debate currently taking place at the ISA must be understood as an important part of the struggle for the continued habitability of the planet. Thus, it seems to be reasonable and necessary that ISA members connect their deliberations to considerations of the circular economy, sustainable production and consumptions patterns as well as sufficiency, thereby strengthening the long-time conservation of the deep sea.