The International Seabed Authority (ISA), which governs deep-sea mining in international waters, could face its first application for seabed mining this year, despite the fact that it has not yet finalized needed regulations for such activity. Created under the United Nations Convention on the Law of the Sea (UNCLOS) in 1982, the ISA is mandated “to ensure the effective protection of the marine environment from harmful effects that may arise from deep-seabed-related activities.” The ISA has been negotiating a set of rules for deep-seabed mining but is years away from agreeing on a final, comprehensive set of regulations.
The ISA Council has clearly said that unregulated mining should not be permitted before the ISA finalizes its rules. Despite this, a handful of governments and companies are pushing to begin mining, and one has stated its intention to submit an application later this year.
Given the lack of precedent for such a case, and the potential for irreparable damage to the environment resulting from mining activities, legal disputes might arise from the Authority’s decisions on this mining application. Two recent papers commissioned by The Pew Charitable Trusts explore potential legal issues that may be triggered by a forthcoming exploitation application: whether an applicant would have grounds to file a claim against the ISA for rejection of their mining application; and whether an ISA member State could bring a claim against the Authority if an application is approved in the absence of regulations.
Some mining proponents have cited the legal doctrine of “legitimate expectations,” drawn from investment law, as a basis for potential lawsuits against the ISA if an application to mine is rejected, since the ISA had allowed the applicant’s investment of time and money in prior mineral exploration activities.
However, recent expert analysis indicates that there are significant obstacles to such legal challenges due to the ISA’s unique circumstances. Specifically:
The legal experts therefore conclude that the private commercial interests of an individual investor are not a legally relevant factor and should not be used to intimidate ISA member States in their decision-making.
Thus, the prospects of successfully suing the ISA for rejecting an application are weak. Conversely, there is a strong case for legal action against the ISA if it approves an application in the absence of a regulatory framework. Foremost, the ISA’s decision-making must deliver on its mandate under UNCLOS, including its responsibilities towards environmental protection and overall benefit to all of humankind.
Thirty-two member States of the ISA have called for a moratorium on seabed mining, and the ISA Council has repeatedly decided that mining cannot proceed without regulations. Given this context, member States could have legal recourse against a mining approval, especially because such an approval would breach the ISA’s obligations to protect the marine environment and would exceed the ISA’s jurisdiction.
With respect to this potential liability, in one of the Pew-commissioned papers, legal experts found that:
The approval of a mining application in the absence of regulations would not only violate the ISA’s obligation to protect the marine environment but also expose the ISA to potential legal challenges. The significant environmental implications of unregulated mining, and the necessity for strict adherence to international law – including the precautionary principle – require that the ISA exercise extreme caution in its approval processes and reject any mining applications in the absence of adequate regulations. Litigation threats from commercial entities should not influence the ISA to discharge its duty to safeguard ocean ecosystems from the impacts of mining.
Anindita Chakraborty works on The Pew Charitable Trusts’ ocean governance project.