The document discusses the upcoming 11th Annual Deep Sea Mining Summit in London in May 2023. It provides an overview of topics that will be discussed, including the latest from the International Seabed Authority (ISA) after its 28th session, exploring liability and responsibility for deep sea mining projects, and issues regarding civil liability. It also discusses deep seabed mining in the international seabed area, the common heritage of mankind principle, the ISA and its regulations, calls for a moratorium on deep seabed mining, and challenges regarding state sponsorship and enforcement of regulations.

1. 11th Annual Deep Sea
Mining Summit
London May 2023
Katherine Reece Thomas
Associate Professor of Law
The City Law School
City, University of London
katherine.reece-thomas@city.ac.uk

2. ▪ Discussion of latest from the ISA after Part 1 of its
28th Session in March 2023
▪ Exploring liability and responsibility for DSM projects
▪ Issues of civil liability in relation to deep seabed
exploration and exploitation
▪ What if Nauru’s deadline is not met?
The Mining Code/ Regulatory Issues

3. Deep Seabed Mining in the Area
▪ The international seabed corresponds to approximately 44% of
the oceans. What is called the AREA is unlike any other sea
area as it is governed by the principles of common heritage of
humankind (as we should say now) and non-appropriation.
▪ Significant departure from coastal state domination of law of the
sea.
▪ Neither sovereignty nor freedom…
▪ Sources: UNCLOS 1982 and Implementation Agreement 1992
in force 1994 and customary international law

4. ▪ In 1982, the Common Heritage of
Mankind concept was stated to relate to
"the seabed and ocean floor and subsoil
thereof, beyond the limits of national
jurisdiction" under Article 136 of the
United Nations Law of the Sea Treaty
(UNCLOS).
▪ Articles 133-143
The Area and the Deep Seabed/Common Heritage of Mankind
▪ Moratorium resolution 1969 then
▪ United Nations General Assembly
Resolution 2749 (1970): Declaration
of Principles Governing the Seabed
and Ocean Floor, 108 nation states
▪ “The deep seabed should be
preserved for peaceful purposes and
is the "Common Heritage of
Mankind."

5. Common Heritage principles
▪ All rights in the resources of the Area are vested in
humankind as a whole
▪ No state or natural or juridical persons can claim,
acquire or exercise rights in connection to the
resources in the Area except under UNCLOS Part XI

6. Common Heritage principles
▪ All mining and any mineral resources recovered may only be
alienated in accordance with UNCLOS and the rules adopted by
the Authority
▪ States must ensure "effective control" re state enterprises or
sponsored entities
▪ Activities (including research) to be carried out for benefit of
humankind as a whole

7. Common Heritage 3
▪ Today: Financial and other benefits are subject to equitable
sharing under rules of the Authority –art 133-143
▪ Part XII environment art 145
▪ Customary International Law
▪ Think about impact of BBNJ treaty?
▪ Should we “rip up the ocean floor to facilitate the energy
transition”? Minerals in deep seabed are key?

8. The International Seabed Authority
▪ The regulation of the Area is in the hands of the International Seabed
Authority ISA which has supra national jurisdiction as it covers states
and natural persons and exclusive jurisdiction ie no one can act without
the approval of the Authority.
▪ Made up of 167 Member States, and the European Union, the
International Seabed Authority is mandated under the UN Convention
on the Law of the Sea to organize, regulate and control all mineral-
related activities in the international seabed area for the benefit of
mankind as a whole.
▪ ISA has the duty to ensure the effective protection of the marine
environment from harmful effects that may arise from deep-seabed
related activities.

9. The Authority
▪ The Assembly: all member states
▪ The Council: 36 member states
▪ The Legal and Technical Commission(LTC) reviews
applications, supervises contracts, drafts rules and regulations
▪ Finance Committee
▪ Working Groups
▪ Decision making: is there a pro-mining bias at ISA?
▪
▪ (see below)(WWF p 13(FT 23/4/23)
https://wwf.panda.org/discover/our_focus/oceans_practice/no_deep_seabed_mining/

10. The Mining Code: Discussion on new draft regulations
versus environmental protection
▪ ISA Mining Code: the underwater mining regulatory framework
which will have an impact beyond UNCLOS
▪ Comprehensive set of rules, regulations and procedures (RRPs)
issued by ISA to regulate prospecting, exploration and
exploitation of marine minerals in the international seabed Area.
▪ Influential on the global approach to regulation of DSM,
specifically the development of international customary law,
which also binds non-parties to UNCLOS (notably the United
States).

11. Exploitation Regulations update
Since 2000, three different sets of RRPs applicable to exploration
in the Area have been issued, and as at 31 January 2023, 30
contracts for exploration were in force, of which 19
were for polymetallic nodules, 7 for polymetallic sulphides and 4
for cobalt-rich ferromanganese crusts. 22 contractors.
Commercial exploitation has not yet commenced and there is no
governing framework for exploitation yet but Nauru triggered the
two-year rule (July 21) which means ISA must “use best
endeavours” to complete adoption of relevant RRPs by July 23.
Nauru sponsoring The Metals Company (Vancouver based)

12. Where are we?
▪ Meeting in Kingston just concluded Part 1 of its 28th session.
Docs about the Council https://www.isa.org.jm/sessions/28th-
session-2023/
▪ There are still big gaps re environmental concerns and benefit
sharing
▪ Finance Co https://www.isa.org.jm/wp-
content/uploads/2023/04/ISBA_28_FC_3-1.pdf
▪ Legal and Technical Commission
▪ https://www.isa.org.jm/wp-
content/uploads/2023/03/2301444E.pdf

13. What happens next?
▪ If Nauru deadline not met then the default position is that the
ISA Council must consider for provisional approval any plan of
work submitted to it which is consistent with the provisions of
UNCLOS and any RRPs that the ISA Council may have
adopted provisionally, and with norms contained in the 1994
Agreement. (see Moratorium Legal Opinion)
▪ But… will mining commence?
▪ What are concerns??
▪ What RRPs are in place?

14. Draft Exploitation Regulations (”DER”)
The draft DER were published by the ISA’s Legal and Technical
Commission in 2019 but are not final.
Focus of comments so far has been on environmental aspects.
Need also to finalise standards and guidelines to be developed by the
organs of the ISA. The standards will be legally binding on Contractors
and ISA, whereas the guidelines will be recommendatory in nature.
There is pressure to complete them by July 2023 to comply with Nauru’s
trigger but this is now virtually impossible.
Calls for a moratorium getting stronger

15. ▪ ISA maintain that the DER include environmental protection
elements/ provisions aimed at preserving the precautionary pple
(the overriding one as a matter of CIL) and the polluter pay pple
▪ Need compliance with UN Sustainable Development Goals
especially Goal 14
▪ Contractors must develop Plans of Work and feasibility studies
before licenses can be granted….
▪ An inspection regime is established for the purposes of
monitoring and enforcing compliance with the legal framework.
Environmental issues

16. Issues
▪ Do these provisions meet the requirements of art 145 of UNCLOS
which specifies that measures must “ensure effective protection for the
marine environment from harmful effects that may arise from such
activities?”
▪ Critics say the regulations are too soft. That to require serious harm
as a threshold is too high
▪ Campaigners say that the language in the DER requiring states and
contractors to avoid, remedy or mitigate harm to the environment is not
strong enough-in other words “harmful effects need to be prevented,
rather than just avoided, remedied or mitigated”
▪ Procedures for decision making in ISA contra to precautionary
approach says WWF
▪ https://wwf.panda.org/discover/our_focus/oceans_practice/no_deep_seabed_mining/

17. Moratorium Call
▪ Given concerns a growing number of NGOs, commercial enterprises and States
are calling for a moratorium or precautionary pause on exploitation of the Area.
▪ Until the gaps in scientific knowledge are filled and/or the ISA’s institutional
capacity is addressed, a precautionary approach requires that the
commencement of any commercial exploitation be deferred.
▪ IUCN resolution 122
▪ ISA says a moratorium or precautionary pause would not be consistent with
UNCLOS.
▪ Michael Lodge has apparently said any moratorium would be “anti-science, anti-
knowledge, anti-development and anti-international law” (FT 25/4/23)

18. Legal basis for moratorium
▪ Douglas KC/Fisher Feb 23 opinion says think of a moratorium as “the
adoption of a legal measure to defer commencement of deep-sea mining until it
can be carried out without risking significant harm to the marine environment.
Understood that way, a moratorium or precautionary pause is not only
consistent with UNCLOS but is actually required by it. It is a core obligation of
States Parties to protect and preserve the marine environment; it would be a
violation of that obligation to enable the commencement of exploitation of the
Area at a time when scientific understanding of the deep sea, the existing
regulatory arrangements, and the ISA’s institutional capacity are insufficient to
ensure that outcome.”
▪ They have 5 suggestions…
▪ https://www.pewtrusts.org/-/media/assets/2023/03/deep-sea-mining-moratorium.pdf

19. Nauru says
▪ In the absence of the provisional adoption of the Regulations the
Council must still consider and approve a plan of work relying on its
interpretation of paragraph 15 of the Annex to the 1994 whereby "a
State whose national intends to apply for approval of a plan of work for
exploitation" may request the Council to complete the adoption of all
rules, regulations and procedures necessary to facilitate the approval of
a plan of work for exploitation within two years of the request
▪ Opinion paper on the regulatory steps and decision-making for a Plan of Work submitted to the Authority
pursuant to Section 1, Paragraph 15 of the Annex to the Agreement relating to the Implementation of Part
XI of the United Nations Convention on the Law of the Sea

20. What happened at 28th Session of ISA?
Debate but no agreement on procedure to handle provisional license applications
after 9 July 2023.
Belgium/Singapore Co-Facilitators’ Briefing Note to the Council on the informal
intersessional dialogue established by Council decision ISBA/27/C/45:
Progress made but divergence of views remain.
Emerging consensus re legal interpretation and application of the ‘two-year rule’:
“(a) no obligation on the Council to automatically approve a pending application for a plan of
work under para 15©.
(b) Both the Council and the LTC as its subsidiary body have a role in considering a pending
application for a plan of work under subparagraph (c). Article 145 and other provisions of
UNCLOS form part of the legal sources and criteria based on which the Council shall consider
and provisionally approve a plan of work.
(c) Provisional approval of a plan of work under subparagraph (c) is not the same as, and
does not amount to, final approval. A provisionally approved plan of work does not equate to a
contract for exploitation.

21. Divergences in views remain in relation to the following key
issues and questions:
(a) Is there a legal basis for the Council to postpone (i) the consideration and/or
(ii)the provisional approval of a pending application for a plan of work?
(b) Does article 165(2)(b) apply/is the LTC required to review a plan of work and
submit appropriate recommendations to the Council ?
(c) What guidelines or directives may the Council give to the LTC, and/or what
criteria may the Council establish for the LTC?
(d) What happens after a plan of work for exploitation has been provisionally
approved but before the conclusion of a contract for exploitation?
See (https://www.isa.org.jm/wp-content/uploads/2023/03/Co_Facilitators_Briefing_Note.pdf and
https://www.isa.org.jm/wp-content/uploads/2022/12/2225713E.pdf)

22. Exploring liability and responsibility for DSM
projects
▪ The relationship between the contractor, the sponsoring state
and the Authority raises complex questions at the intersection of
international and municipal law.
▪ The contractors are creatures of domestic law but they have
duties and rights under the contracts which are governed by
international law.
▪ As natural or juridical persons they are not endowed with
personality in international law questions about the hybrid
nature of this relationship arise.
▪ What happens on insolvency?

23. Two issues
▪ 1.The responsibility of the state sponsor /ie the potential
liabilities of the states in international law for deep seabed
mining activities carried out by private law entities. That
requires a look at the Advisory Opinion of the Seabed Disputes
Chamber of 2011 (following a request from Nauru and Tonga to
the ISA); and
▪ 2. Which states should be doing the sponsoring-in other words
how is the test of effective control to be interpreted?

24. Existing regime:
▪ Sponsoring State Liability • Article 139, UNCLOS
▪ Art 153 states …effective control
▪ Article 235: Responsibility and Liability general
obligations re damage to environment

25. Activities in the Area/ITLOS Advisory Opinion
Case no 17 2011
▪ Unanimous opinion on responsibilities and obligations of states
sponsoring persons and entities
▪ Qu 1:Chamber concluded that the responsibility to ensure that activities
be carried out in conformity with UNCLOS is not an obligation of
result but only one to deploy adequate means/use best efforts
▪ But Tribunal concluded that there were some direct obligations on
states under the Convention (in addition to responsibility for sponsored
contractors) in particular to apply precautionary approach and the
obligation to apply the “best environmental practices”

26. Advisory Opinion Case no 17 (continued)
▪ qu 2 “The liability of the sponsoring State arises from its failure
to fulfil its obligations under the Convention and related
instruments. Failure of the sponsored contractor to comply with
its obligations does not in itself give rise to liability on the part of
the sponsoring State.
▪ qu 3 “The Convention requires the sponsoring State to adopt,
within its legal system, laws and regulations and to take
administrative measures that have two distinct functions,
namely, to ensure compliance by the contractor with its
obligations and to exempt the sponsoring State from liability.”
https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_17/17_adv_op_010211_en.p
df

27. ▪ Obligations have not been tested in domestic law/
interesting if Advisory Opinion could be used by
litigants in claims against states in domestic courts?
▪ Perhaps in the context of a judicial review
▪ See New Zealand case below
Advisory Opinion Case no 17 (continued)

28. ▪ National courts
▪ Seabed Disputes Chamber art 187 of UNCLOS
▪ Commercial arbitration
Existing forums for dispute resolution involving contractors

29. Liability Study
▪ 2018 ISA Legal working group looked at liability for environmental harm
from activities in the Area and considered issues of attribution,
standards of liability, defining compensable damages, and standing.
▪ Report drafted by the CIGG is very helpful but not sure where this has
gone?
▪ https://www.cigionline.org/publications/legal-liability-environmental-harm-synthesis-and-overview/
▪ There are provisions in the draft Regulations on liability notably in
Section 7 of the draft contract –reference to wrongful acts- so no strict
liability
▪ Note also Section 12: Suspension and termination of Contract and
penalties: “serious persistent and wilful violations of the fundamental
terms”

30. Which states should be doing the sponsoring?
▪ How is the test of effective control to be
interpreted?
▪ Issue of effective control goes to the heart of
establishing mechanisms for ensuring real
responsibility. It raises questions about the use of the
corporate veil and parent company liability and the
status of multinational companies in international law
▪ Should more than one state sponsor?

31. Effective control: Regulatory or Economic
▪ Reg 5: States parties, State enterprises or natural or juridical persons
which possess the nationality of States or are effectively controlled by
them or their nationals, when sponsored by such States, or any group
of the foregoing…. can apply for approval of plans of work .
▪ It was on the LTC agenda 27th session to look at effective control but at
28th session it remains on the agenda-ie no progress
https://www.isa.org.jm/wp-content/uploads/2023/03/2301444E.pdf
▪ The issues resonate in international law as they remind one of the flag
state jurisdiction rule and Nationality of claims rule in PIL generally. Are
we still looking at Barcelona Traction?
▪ International regulation of multinational corporations generally

32. Enforcement?
▪ The ISA has the rt to take measures to ensure compliance and power
to sanction non-compliance. (art 18 of Annex III)
▪ But as Michael Lodge has written:
“The Authority has neither ocean-going vessels nor deep-sea
submersibles at its disposal. How can it adequately supervise activities
that are out of sight and hugely expensive to monitor? These are
reasonable concerns, and it is evident
that the Authority will need to significantly upscale its regulatory capacity
in the coming years.”
Marine Technology Society Journal, November/December 2021, Volume 55 Number 6 15

33. Issues of civil liability in relation to deep seabed exploration
and exploitation
▪ Despite many states having enacted domestic legislation there is no
definitive set of rules and regulations that should be adopted by a
sovereign State. ISA says that “over time consistent approaches and
practices will develop simultaneously as the Authority’s legal and
administrative framework develops”.
▪ IAS website has a link to relevant domestic statutes and a comparative
study: https://www.isa.org.jm/wp-content/uploads/2022/06/ISBA_26_C_19-2007015E.pdf
▪ See also Hannah Lily study: Liability Issues for Deep Seabed Mining Series |
Paper No. 3 — December 2018 Sponsoring State Approaches to Liability
Regimes for Environmental Damage Caused by Seabed Mining.
https://www.cigionline.org/publications/sponsoring-state-approaches-liability-regimes-environmental-
damage-caused-seabed/

34. Think about
▪ Domestic litigation/ Human Rights and Liability of sponsoring
states
▪ Climate change litigation
▪ 2021 NZ case of Trans-Tasmanian Resources/ 2021 NZSC 127
Supreme Court upholds challenge to the decision to grant
marine discharge and dumping consents license-in EEZ
but…discussion of material harm/role of economic benefit
considerations
▪ Interesting on the precautionary principle and the requirement
on the relevant authority to “favour caution”. Notably thought
ITLOS decision not helpful re EEZ (para 113)

35. ▪ Commentators have concluded:
▪ “It is important that the regulatory framework is developed in a transparent manner and continues
to allow stakeholders’ concerns to be heard. The regulatory framework should be clear in its
operation and sufficiently flexible such that it can be further developed as necessary, to meet
future needs.”
▪ HSF https://hsfnotes.com/mining/2022/04/21/deep-sea-mining-opportunities-obstacles-and-why-a-strong-regulatory-framework-
will-make-all-the-difference/#page=1
▪ “Once regulations are adopted there will be no going back: as the regulations are currently drafted,
any number of contracts will be issued for 30 years with a 10 year almost automatic renewal. If
regulations are approved by July (next year), member States will essentially lose control of the
process, due to a voting structure that favours the approval of applications for plans of work.”
http://www.savethehighseas.org/isa-tracker/index.php/2022/04/04/the-threat-of-deep-sea-mining-continues-to-hang-over-the-
ocean-as-negotiations-in-jamaica-come-to-a-close/#more-336
Finally: the regulatory
framework/transparency plea

36. The City Law School
City, University of London
Northampton Square
London
EC1V 0HB
United Kingdom
T: +44 (0)20 7040 5060
E: department@city.ac.uk
www.city.ac.uk/department