The International Seabed Authority (ISA) was established in 1994 and comprises 170 Member States plus the European Union. The ISA has a conflicting dual mandate, as it is both tasked with regulating any mining activities in the ocean seabed beyond national jurisdiction (also known as the Area) and at the same time responsible for ensuring the protection of the marine environment from the harmful effects of deep-sea mining. (United Nations Convention on the Law of the Sea [UNCLOS], 1982, Articles 145 and 140). This conflicting mandate is further exacerbated by the fact that the ISA would be funded by royalties generated by the ISA issuing mining licenses if and when mining would be permitted to begin.
There are several key issues with the ISA’s institutional structure and decision-making processes that lead to it prioritizing the facilitation of mining over safeguarding the marine environment. Firstly, the ISA’s lack of transparency is concerning. Most decisions regarding approval of licenses for exploration or exploitation by the ISA are guided by the recommendations of its 41-person Legal and Technical Commission (LTC), an advisory body whose members are elected to serve in their personal capacities for five-year terms. The LTC meets behind closed doors and any contracts approved by the LTC remain confidential. What’s more, States that sponsor mining activities are disproportionately represented on the ISA Council – the body responsible for adopting mining regulations – and their nationals comprise a significant portion of the LTC, suggesting potential conflicts of interest. Meanwhile, some LTC members also serve as members of their governments’ delegations in the ISA Council, which means they act both as decision-maker and advisor to the decision-maker. The fact that the LTC is responsible for environment issues and is composed largely of geologists, lawyers, and diplomats is also problematic, as it means decisions are not informed by impartial scientific advice, despite standard practice for scientific committees to advise international organizations.
States at the ISA are still negotiating fundamental elements of the Mining Code, which comprises rules, regulations and procedures to regulate exploitation of marine minerals in the Area. Monitoring and enforcement of any regulations remain a major challenge for the ISA, which currently lacks an independent inspection fleet, permanent on-side presence, or reliable means to verify contractor data.
To resolve deeply embedded structural problems, ISA Member States should work towards reforming the ISA so that it becomes a more transparent, accountable, effective and inclusive regulatory body committed to defending the deep, where decisions are informed by the best available science.