Legal Recourse Is Possible If International Seabed Authority Approves Mining

The International Seabed Authority (ISA), the intergovernmental body in charge of governing mineral-related activities in international waters, is at a pivotal juncture: The authority could receive an application for deep-sea mining this year, even though it has not yet finalized needed regulations for such mining.

The ISA was created under the United Nations Convention on the Law of the Sea in 1982 with a mandate “to ensure the effective protection of the marine environment from harmful effects that may arise from deep-seabed-related activities.” The ISA Council, the executive organ of the authority, has been negotiating a set of rules for deep-seabed mining but is years away from agreement on a final, comprehensive set of regulations. Yet a handful of governments and companies are pushing to begin mining, with one company announcing its intention to submit an application in 2025.

Legal disputes would likely arise if the ISA approves mining, given the lack of rules and regulations to assess applications, the scientific uncertainty, risk to the environment and growing calls from member States within the ISA to enact a moratorium on deep-sea mining.

Pew commissioned a legal opinion from Toby Fisher—an international law expert and noted barrister with a particular expertise in environment and human rights—on the advisory or dispute resolution pathways available to States and the ISA Assembly and Council.

The opinion finds that the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea would have jurisdiction over a dispute related to the approval of a mining application. It highlights that a provisional approval of a mining application in the absence of regulations could be challenged on several grounds, including inconsistency with obligations under the U.N. Convention on the Law of the Sea.

Fisher is affiliated with Matrix Chambers, a group of independent lawyers with offices in London, Brussels and other locations.

The Pew Charitable Trusts provided funding for this project. Pew is not responsible for errors in this paper and does not necessarily endorse its findings or conclusions.