SSI0142

Written evidence submitted by the International Seabed Authority

The International Seabed Authority is grateful for this opportunity to submit further written evidence to the Environmental Audit Committee in support of its inquiry into sustainable seas. This evidence supplements the oral evidence presented by the Secretary-General, His Excellency Mr. Michael W. Lodge, at a hearing on 16 October 2018. In particular, the Committee had requested further information concerning the current status of deep sea mineral exploration including the details of contracts issued and their sponsoring States. 

Background to the International Seabed Authority

The International Seabed Authority implements the provisions of the 1982 United Nations Convention on the Law of the Sea (LOSC) relating to deep-sea mining. The Authority was established upon entry into force of the LOSC (16 November 1994) and is headquartered in Kingston, Jamaica (www.isa.org.jm). All parties to the LOSC (currently 168) are members of the International Seabed Authority.

Under the LOSC, the seabed and subsoil beyond the limits of national jurisdiction[1] (known as ‘the Area’) and its mineral resources are designated as the ‘common heritage of mankind’. In so doing, the LOSC gives binding legal effect to the Declaration of Principles Governing the Sea-bed and Ocean Floor and the Subsoil Thereof, beyond the Limits of National Jurisdiction, adopted by the UN General Assembly in 1970 (General Assembly resolution 2749(XXV)).

This legal mechanism was established to

prevent a scramble for the resources by technology-advanced countries, and to ensure that activities (marine scientific research, exploration, exploitation) would benefit mankind as a whole, in particular through the equitable sharing of financial and economic benefits with the international community. The alternative would have been that access to those mineral resources would have been on a first-come, first-served basis, without international management.

The policy objectives of the international regime include the promotion of the effective participation of developing States in activities, the increased availability of metals to world markets to satisfy consumer demand and the protection of the marine environment from harmful impacts.

Part XI of the UN Convention on the Law of the Sea establishes a carefully balanced and comprehensive legal regime that not only safeguards the rights and interests of all mankind, but also pays particular attention to the protection of the marine environment from harmful impacts.

The status of the deep seabed and its resources as the common heritage of mankind underpins the legal regime for the management of all marine space. What is not under the exclusive jurisdiction of States is managed by all States through the Authority, based on principles of equality and equity in access to and allocation of resources and with a view to promoting the economic and social advancement of all peoples of the world.

Under the LOSC, exploration for and exploitation of seabed minerals in the Area may only be carried out under a contract with the International Seabed Authority and subject to its rules, regulations and procedures. The International Seabed Authority has the exclusive mandate to manage seabed minerals in the Area on behalf of ‘mankind as a whole’, and the exclusive right to issue exploration and exploitation contracts for minerals in the Area. Contracts may be issued to both public and private mining enterprises provided they are sponsored by a State party to the LOSC and meet certain standards of technological and financial capacity.

Ultimately, the economic benefits from deep-sea mining, most likely in the form of royalties paid to the International Seabed Authority, are to be shared for the ‘benefit of mankind as a whole’, with particular emphasis on the developing countries that lack the technology and capital to carry out seabed mining for themselves.

The International Seabed Authority is not empowered to exclude other (non-mineral) activities in the Area, such as marine scientific research, even in areas for which it has issued an exploration or exploitation contract. Neither is it empowered to issue contracts for activities related to other (non-mineral) resources in the Area.

Although the basic conditions under which mineral prospecting, exploration and exploitation may take place are specified in Annex III of the LOSC, the International Seabed Authority develops internationally legally binding regulations that elaborate upon these basic conditions. So far, it has issued regulations governing exploration for the three main types of marine mineral resources (polymetallic nodules, cobalt-rich ferromanganese crusts and seafloor massive sulphide deposits). Regulations to govern exploitation of these resources are now under development.

Whilst the main function of the International Seabed Authority is to regulate deep seabed mining, it also has a number of equally important ancillary functions. These include promoting and encouraging marine scientific research concerning the Area and its resources and potentially even carrying out such research; promoting and encouraging the transfer to developing countries of technology and scientific knowledge relating to activities in the Area and promoting international cooperation regarding activities in the Area.

The main organs of the Authority are the Assembly (comprising all 168 members) a Council made up of 36 member States elected according to a complex rotational formula, and a Secretariat, headed by a Secretary-General. There are also a number of important subsidiary bodies consisting of individuals elected on the basis of their expertise, including a Legal and Technical Commission and a Finance Committee.

Current status of deep sea mining

No commercial deep sea mining is taking place at present. Prospecting and exploration have been taking place since the 1970s. Indeed, much of the impetus behind the Third United Nations Conference on the Law of the Sea arose from the need to resolve the question of how to manage access to deep sea mineral resources found in the seabed beyond national jurisdiction. From the outset there was a fundamental divergence of views as to whether deep seabed mining would be carried out by private sector or State entities as a freedom of the high seas, or through a system of controlled access through an international organization. Ultimately, the system that was agreed is a hybrid system whereby access is granted under contract to the Authority as the representative of humankind as a whole, thus making it clear that there can be no assertion of sovereignty or sovereign rights by any single State over any part of the seabed beyond national jurisdiction.

Immediately following the entry into force of the LOSC, the rights of the so-called registered pioneer investors were grandfathered in to the single regime created by the LOSC and its 1994 Implementation Agreement. Subsequent exploration contracts have been issued under the regulations adopted by the Authority.

Tables 1, 2 and 3 show the current list of contractors with the International Seabed Authority, and their sponsoring States.

Figures 1, 2 and 3 are maps of the Indian, Atlantic and Pacific Ocean basins showing the location of exploration contracts.

Table 1 : Exploration contractors for polymetallic nodules

Table 2: Exploration contractors for polymetallic sulphides

Table 3: Exploration contractors for cobalt-rich ferromanganese crusts

The major activities carried out at sea during the exploration phase include resource assessment and identification of mineable areas through geological mapping and survey work as well as the collection of environmental baseline data. The regulations and guidelines adopted by the International Seabed Authority specify in great detail the types of baseline environmental data to be collected by contractors. These data must be reported to the Authority on an annual basis and made publicly available through a database maintained by the Authority. Upon expiration of an exploration contract (unless a contract for exploitation is granted) all data collected by the contractor becomes the property of the Authority.

The Authority’s Legal and Technical Commission monitors and comments upon the work carried out by contractors and recommends any necessary action by the Council. The knowledge gained in this way over decades of seafloor exploration represents an important asset which is held by the Authority on behalf of humanity.

The Authority also collaborates extensively with the global scientific community and sponsors research, workshops and publications. Many of these efforts are aimed at the protection of the marine environment. Examples include efforts to standardize taxonomic data, develop criteria for the designation of impact reference zones and preservation reference zones, and design templates for environmental impact assessment. The results are freely available on the International Seabed Authority's website and associated apps.

Figure 1: Clarion-Clipperton Zone Exploration Areas for Polymetallic Nodules

Regulatory challenges for the International Seabed Authority

Deep sea mining presents complex regulatory challenges due to its multi-faceted political, economic, technological, scientific, environmental, social, industrial and legal aspects. These must all be sensitively addressed to achieve a commercially viable and socially responsible industry. The Authority is currently in the process of developing regulations to govern exploitation of marine minerals. Draft regulations are under consideration by the Council. The current draft benefits from the results of two rounds of global stakeholder consultation, in 2016 and 2018.

As they presently stand, the draft regulations consolidate a number of subject matters including environmental protection and inspection. This will facilitate an environmentally-integrated approach to the management of mining activities. The draft regulations do not seek to address every aspect of mining activities in detail. The aim is to present the essential components of the application process, outline key rights and obligations including management and administration consistent with the LOSC. Implementation of the regulations will be supported by a suite of standards and guidelines (to be developed). As with the exploration regime, the exploitation regime will be based on a contract, which provides the necessary legal link between the contractor and the rules, regulations and procedures adopted by the International Seabed Authority, including rules relating to the effective protection of the marine environment.

The Authority’s role, and key policy objective as a regulator in terms of environmental protection is principally that of regulating the risk (and uncertainty) presented by future mining operations and their associated environmental effects.

UK Contribution to the International Seabed Authority

The United Kingdom has been a member of the International Seabed Authority since it ratified the LOSC on 25 July 1997. The United Kingdom also played a key role in the negotiation of the 1994 Agreement for the Implementation of Part XI of the United Nations Convention on the Law of the Sea and was a provisional member of the Authority from 16 November 1994 to 25 July 1997 before becoming a full member.

The United Kingdom has been a member of the Council since 1997 and is currently elected as a member of Group E from 2017-2020. United Kingdom nationals have served on the Legal and Technical Commission since 1997. In 2016 Dr. Gordon Paterson was elected as a member of the Commission for the period 2017-2021, replacing Dr. David Billett, who served from 2007-2016.

The United Kingdom is the fifth largest contributor to the budget of the International Seabed Authority and is thus entitled to a seat on the Finance Committee.

The present (third) Secretary-General of the Authority is a UK national (Michael W. Lodge, elected for the period 2017-2020). Previous Secretaries-General were Satya N. Nandan CBE (Fiji) and Nii Allotey Odunton (Ghana).

The United Kingdom is also a sponsoring State. UK Seabed Resources Ltd. holds two contracts for exploration for polymetallic nodules in the Clarion-Clipperton Zone in the Pacific Ocean.

Conclusion

The International Seabed Authority represents a unique experiment in international law, international relations, and international regulatory development.

For many countries, it fulfils a long-held vision that the mineral wealth of the deep seabed beyond national jurisdiction should not be appropriated by a few technologically advanced countries but should be shared between all countries, including the landlocked and disadvantaged countries, given its status under the LOSC as the common heritage of mankind.

The task of the International Seabed Authority is to deliver on this vision and to make sure that it is done in the most responsible and sustainable way possible.

Given that the fundamental concept of the LOSC is that deep seabed mining is only allowed to take place under contract to the International Seabed Authority, the default position is that the seabed is off limits to mining except where expressly permitted by the Authority following a rigorous approval process. Everything is protected. This essential aspect immediately sets deep seabed mining apart from any other high-seas activity, including fishing.

Two major challenges confront the International Seabed Authority at present. The first is to establish a workable regulatory framework for mineral exploitation that incentivizes contractors to commit significant investment and resources to develop deep sea mining projects, but which also addresses concerns of state parties to the LOSC, as well as other stakeholders, such as environmental groups. These concerns range around, for example, regulatory stability and predictability, and the financial and environmental management regime.

The second major challenge is environmental planning at the regional scale. The International Seabed Authority is addressing this challenge by progressively developing Regional Environmental Management Plans (REMPs) in all areas where exploration activity is taking place. The first REMP, for the Clarion-Clipperton Zone, was adopted in 2012 and included the designation of a network of nine areas of particular environmental interest, covering 1.6 million square kilometres of seabed, where mining will not be permitted to take place. The Authority is in the process of developing REMPs for the Mid-Atlantic and Western Pacific Oceans. Transparent and collaborative scientific and policy work is essential to this process.

October 2018

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