Permission could soon be given to private or state-run entities to mine (as yet untapped) resources of metallic nodules, crusts and other deposits on the deep ocean floor in areas outside of the ownership of any single nation state, beneath the high seas. The deposits are rich in metals such as cobalt, copper, manganese and nickel that are in demand to facilitate decarbonisation.

The deposits were first discovered in the nineteenth century: British-led expeditions on HMS Challenger between 1872 and 1876 found them in most of the world’s oceans. Mining them was however considered to be economically and technologically infeasible until advances in technology in the 1960s, when it first began to be seriously discussed. At the time, the legal status of the seabed beyond the continental shelf was yet to be agreed.

A (prescient) legal framework to control deep sea mining was, however, enshrined in the UN Convention on the Law of the Sea (UNCLOS) in 1982. This led to the creation of a specific dispute resolution mechanism - the Deep Sea Chamber of the International Tribunal for the Law of the Sea, based in Hamburg – as well as establishing an international regulator, the International Seabed Authority (ISA). The legal regime is especially unusual in that it recognises that these metallic deposits are the “common heritage of mankind”, with provisions designed to ensure that developing nations will not be disadvantaged if for example a glut of metal ores obtained from deep sea mining were to depress the prices achievable for the equivalent ores produced by land-based mining operations. It is also unusual in establishing a commercial arm (the Enterprise) to engage for profit in deep sea mining joint venture arrangements.

Skip forward to today, when a decision on whether to pave the way for commercial exploitation to commence now hangs on the outcome of negotiations currently underway at the ISA’s HQ in Jamaica on a set of exploitation regulations. These contain provisions that deep sea mining contractors and their sponsoring member countries must adhere to when utilising the exclusive rights granted to them in contracts with the ISA.

Discussions on the draft exploitation regulations have been under way since 2011, in a process criticised for lacking transparency. It has taken on a sudden urgency after the expiry on 9 July 2023 of a deadline triggered by a notice of intent served by the Micronesian island state of Nauru in 2021 that it intended to submit a plan of work on behalf of a subsidiary of The Metals Group (which Nauru sponsors) for its proposed mining activities to go ahead. Under the applicable rules, this gave the ISA a period of two years to finalise the regulations and procedures necessary for the ISA’s Legal and Technical Committee to scrutinise the plan and make a recommendation. The ISA did not succeeded in meeting the deadline, leaving the ISA in uncharted waters.

In this situation, the rules suggest that Nauru should be allowed to proceed with submitting the plan of work. However, instead ISA member states (Nauru included) are acting with restraint, aware of the environmentally controversial nature of deep sea mining given the gaps in scientific knowledge and lack of data from the deep sea bed. Many members stressed in their opening addresses to the current session of the 28^th Meeting of the ISA Council the view that commercial operations should not go ahead until the regulations are in place, even if now overdue. Several representatives also referred to the need to apply the precautionary principle.

The draft exploration regulations will be effectively the ‘T’s and C’s’ of deep sea mining contracts. They provide for a maximum contract term (currently 30 years in the draft) and a right to apply for renewal. They aim to provide a detailed rulebook for how applications should be made for mining, require monitoring and information sharing and include provisions relating to marine pollution, liability and the requirement for emergency planning. They include financial provisions including obligations to pay royalties to the ISA but also anticipate the conclusion of a suite of supporting guidelines and environmental standards. It is hard to gauge how near to completion the latter might be.

The President’s briefing to the current negotiation session would suggest that negotiators are still at the stage of discussing the principles behind the terms of the regulations and have yet to translate this into drafting. Separate groups are working on particular provisions in standalone versions which have yet to be pulled back together into a consolidated whole. The President anticipates that this will not happen before Council meetings resume in November.

The current round of discussions continues until 21 July 2023. Whilst the key players seem to be sticking with the process, there must be a question over how long their patience will last.