Unraveling the Outcomes: Part II of the ISA's 28th Session

Quite some time has passed since the long-anticipated Part II of the ISA's 28th session in July. It now seems appropriate to review what has transpired and what lies ahead.

To begin, Part II of the ISA's 28th session was highly anticipated. It was expected to clarify a matter of great significance: when, and perhaps how, deep seabed mining would commence. This attracted considerable attention from experts in the field, as well as from civil society, politicians, and the media. Media coverage on this topic reached unprecedented levels, ranging from basic introductions to insightful summaries of the ongoing developments and decisions. For a month, it seemed that deep seabed mining was a vital issue relevant to all, not just a select few. Nevertheless, all this anticipation amounted to nothing significant.

Allow me to explain. Deep seabed mining is not a new question; the legal framework under which we operate was established three decades ago. The matter of deep seabed mining was extensively deliberated and resolved. Any new rules or regulations are simply refinements of what was decided thirty years prior. Hence, it may seem that there is nothing new to anticipate. However, this is not entirely accurate.

Three decades represent a substantial span of time, marked by numerous challenges, changes, revolutions, and evolutions. The current global conditions differ drastically from what was envisaged and expected in the past. Consequently, in light of these present circumstances, decisions from the past may no longer hold the same validity as they did when they were initially made.

This is the current paradigm of deep seabed mining. We have an established decision from the past, we have new conditions in the present, and we find ourselves at a juncture where this decision must either be amended or we must adhere to something that was determined for us long ago.

The existing legal framework provides a straightforward answer: deep seabed mining must commence, leaving the finer details to be determined later. Additionally, a safeguard known as the "two-year rule" compels the ISA to proceed with deep seabed mining even when essential rules or decisions are yet to be finalized. This is the context in which we currently operate.

This is why the July session of the ISA's 28th session was pivotal. The two-year rule was invoked, and the deadline of July 9th was set to decide how deep seabed mining should proceed. However, three decades ago, we managed to decide on general ideas and direction. Now, we find it challenging to agree on anything substantial. While we still have the capacity to change direction, time is running out, and optimism is starting to wane.

To further this discussion, let's provide a concise summary of what transpired in July:

- After the expiration of the two-year rule, the ISA is obligated to accept, consider, and potentially provisionally approve applications for commercial deep seabed mining.

- Approximately 20 member states, both before and during the ISA's July meeting, voiced support for the postponement, moratorium, or outright ban on deep seabed mining.¹

- No decision regarding postponement or cessation of deep seabed mining was reached, and there was no clarification on what "provisionally approved" entails.

- The ISA's Council established a timetable for the adoption of the missing legal framework for deep seabed mining, set to be adopted within two years in 2025.²

Another crucial point emerged after the 28th session:

- Following the ISA's meeting, the Metals company (hereafter - TMC) disclosed its intention to submit an application for exploitation in 2024.³

These five points encapsulate the key takeaways from the ISA's session.

The initial phase of the session held great promise, with an increasing number of states advocating for the suspension of deep seabed mining, painting an optimistic picture of non-development. Unfortunately, this optimism was short-lived and ultimately amounted to little of significance, as some states showed no intention of considering it. However, the momentum created cannot be dismissed, and it continues to be visible even after the session, with civil society advocating for a moratorium.

In summary, following the session, we now have a timeline for the development of the legal framework. The final draft of this framework should be ready by July 2025. Additionally, a private company intends to submit its application in 2024, prior to the completion of the necessary legal framework. They plan to commence mining shortly thereafter, pending approval. Moreover, civil society strongly opposes the development of deep seabed mining, with more and more states and private entities joining their cause.

So, what lies ahead in this deadlock? There is little doubt that opposing parties will push for their proposed solutions. Civil society gains momentum, while TMC presents an increasingly appealing proposition: the potential to facilitate the green transition with minimal environmental impact. The TMC has a compelling case for swiftly initiating deep seabed mining. Additionally, states that strongly support the industry, such as China⁴ and Norway, should not be underestimated. Norway, in particular, is keen on opening its continental shelf to mining.⁵ Given these conditions, it appears unlikely that deep seabed mining can be easily halted or postponed, given that the legal framework currently favors its commencement.

In two years' time, we may have the necessary legal framework for commercial mining, while TMC is pushing for its start one year earlier. This urgency may lead to some challenges, and obtaining a mining license will likely be more arduous. Nevertheless, according to the Council's timeline, the final draft of the legal framework should be ready by 2024, just when TMC intends to submit its application. This means that by 2025, when the final legal framework is set to be adopted, TMC's application would face almost no issues in gaining swift approval, as it has already been considered under essentially the same legal framework.

While the path to commencing deep seabed mining may seem straightforward, it is far from it. Even without considering the challenges associated with finalizing the legal framework or obtaining ISA's approval, states could decide to ban or postpone deep seabed mining at any time (as many countries are already advocating). TMC may lose its backing, preventing it from proceeding, or it may choose not to apply for the permit. Bankruptcy or legal proceedings could also hinder development. The list of potential complications is almost endless.

While everything discussed pertains to the international level, deep seabed mining could still commence within national jurisdictions on the continental shelf of respectable countries. Norway is leading this initiative and may become the first country to permit it on its continental shelf. In conclusion, even though it may not occur in the Area, deep seabed mining might initiate on continental shelves. It seems inevitable that deep seabed mining will eventually begin, one way or another. The future will reveal whether it brings prosperity or accelerates our decline.

¹List of states against deep-sea mining in international waters
²ISA's Press Release 24 July 2023
³TMC expected timeline
⁴China Leads the Race to the Bottom: Deep Sea Mining for Critical Minerals
⁵Why does Norway want to mine the seabed?