Legal Framework
The International Seabed Authority (ISA) is an autonomous international organisation established under the 1982 United Nations Convention on the Law of the Sea and the subsequent 1994 Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea.
The ISA is responsible for regulating the seabed, ocean floor and subsoil thereof beyond the limits of national jurisdiction (known legally as the “Area”) with a remit to organise and control mining activities at all phases, from prospecting to extraction of mineral resources of the Area. Note that this excludes hydrocarbon resources.
While the ISA is responsible for international areas, deep sea mining occurring within the EEZ of coastal states is regulated by the national law of these states. Hence, there might be some variations from one state to another, although it is the ISA that will set the minimum standards to be applied globally, in particular for environmental standards.
One of the principal functions of the ISA is to regulate deep seabed mining and to give special emphasis to ensuring that the marine environment is protected from any harmful effects which may arise during mining activities. This includes both exploration activities and exploitation / extraction operations.
What the LOSC (Laws of the Sea Convention – UNCLOS) requires for the Area is clearly set out in LOSC Annex III Article 17 (2) (f) (f) Protection of the marine environment: “Rules, regulations and procedures shall be drawn up in order to secure effective protection of the marine environment from harmful effects directly resulting from activities in the Area or from shipboard processing immediately above a mine site of minerals derived from that mine site, taking into account the extent to which such harmful effects may directly result from drilling, dredging, coring and excavation and from disposal, dumping and discharge into the marine environment of sediment, wastes or other effluents.”
The ISA has three primary work areas:
- Procedural and operational matters (providing proper regulations for both exploration and exploitation of these mineral resources) to install good governance;
- Profit distribution issues – this covers the fostering of both economic and social developments; and
- Environmental issues - focusing on water column impacts and impacts on deep-sea species and benthic ecosystems
The Law of the Sea Convention (LOSC) designates the Area as well as the resources of the Area as the common heritage of mankind and states that:
“no state or, natural or juridical person shall claim, acquire exercise rights with respect to the minerals recovered from the Area except in accordance with [the international regime established by the Convention]”. (art. 137 (3)) .”
As a result, the exploitation of mineral resources in the Area “shall be carried out for the benefit of mankind as a whole, […] taking into particular consideration the interests and needs of developing states” (art. 140(1)). Benefits are to be understood both as in non-monetary (such as training, knowledge sharing, capacity-building…) and as monetary (payment of royalties back to the ISA, contributions to research/environmental fund...).
The Mining Code developped by the ISA, however, currently only addresses the exploration phase. Components regulating exploitation and implementing the above still need to be drafted and adopted.