SHEDDING SOME LIGHT ON THE INTERNATIONAL SEABED AUTHORITY

In my previous post, I outlined some of the possible impacts of mining at deep-sea vents on marine life, and how effective regulation at a regional scale will be essential to reduce risks of habitat loss and potential species extinction.

So for a second post to accompany Week 6 of our “Massive Open Online Course” on “Exploring our oceans”, let’s now take a look at the regulator that already exists for seafloor mining in international waters: the United Nations International Seabed Authority (ISA).  As we shall see, its procedures perhaps deserve some scrutiny and constructive critique, given their responsibility for environmental protection of the deep-sea floor.

How the ISA works

First of all, we should note that the International Seabed Authority exists to administer seafloor mining in international waters; it does not actually have a mandate to consider whether seafloor mining per se is desirable or not.

Under the UN Convention on the Law of the Sea (UNCLOS), the deep sea is defined as “the common heritage of mankind”.  In other environments – such as the Moon – that same legal definition has been interpreted to prohibit the exploitation of resources, at least for now.

But in the implementation of UNCLOS, “common heritage of mankind” has been interpreted to mean “everybody should get a cut whenever someone makes a buck out of it”.  And hence the ISA was created to administer seafloor mining in international waters, not to ask the question “is it a good idea?”.  That decision has effectively already been made, in the 1994 Implementation Agreement for UNCLOS.  (And if you blinked prior to 1994, you may have missed any public consultation about it).

So here is how the ISA operates: it has identified different types of non-living resources of interest on the seafloor in international waters, and drawn up plans to regulate the development and mining of each of them.  So far there are three types of resources covered by the ISA: “polymetallic sulfides” (aka seafloor massive sulfides) formed at hydrothermal vents; “polymetallic nodules” (aka manganese nodules) on abyssal plains; and “cobalt-rich ferromanganese crusts” that form on seamounts.

For each type of resource, there are two phases involved in development and eventual mining: “exploration licensing” and “exploitation licensing”.  Contractors apply for these licences, and contractors have to be “credible operators” with applications supported by a host country that has ratified UNCLOS.  Contractors so far include companies, research institutions, and government agencies.  There are currently 15 exploration licences in operation across all three types of resource, with four more about to be signed (and here is the list of contractors).

(As an aside, the requirement for sponsorship by a nation that has ratified UNCLOS excludes the USA from participating at present, and would therefore seem to exclude US companies as contractors.  But multinational companies, even if of US origin, can have subsidiaries in other countries that can apply as contractors, if that subsidiary’s application has the support of a “host” nation that has ratified UNCLOS. UK Seabed Resources Ltd, which is a subsidiary of US giant Lockheed Martin, holds two exploration licences sponsored by the UK government).

Licence applications cover geographical “blocks” of the deep sea, which vary in nature depending on the resource involved (for polymetallic sulfides at vents, for example, an exploration “licence block” is typically a ~1000 km section of mid-ocean ridge; and here is a map with blue blocks showing the four current exploration licence areas for polymetallic sulfides).

Contractors are then required to subdivide their licence block into an area that they will develop themselves, and a “reserved area” of equivalent potential value in which developing nations can operate with the assistance of the ISA, or where the ISA can operate through its own commercial “Enterprise” arm in a joint venture with the contractor.

(And given that the ISA has in principle created a commercial arm with the potential right to operate in licensed areas, it is therefore perhaps in the interest of the ISA to award licences… this structure seems to create a potential conflict-of-interest, from a perspective of environmental stewardship).

Award of a licence can exclude other contractors from operating in exactly the same areas for that resource, but cannot exclude scientists from conducting research there (access to international waters for scientific research is guaranteed under other terms of UNCLOS; it may get interesting, however, if a research expedition turns up for work at a site when a contractor is working there).

“Exploration licences”, which typically last for fifteen years, allow contractors to survey and assess the value of the particular resource in their block area.  Some extraction of the resource is allowed, as that is necessary to assess the value of mineral deposits.  The “exploration licence” also allows contractors to test and develop technology for future resource extraction.  So “exploration licences” do involve actual “mining” activities on the seafloor, which will have environmental impacts.  “Exploitation licences” then form a second phase, during which contractors extract the target resource from the areas identified during the “exploration phase”.

Contractors pay fees for their licences (e.g. currently $500 000 up-front for a polymetallic sulfide exploration licence, followed by an annual fee proportional to the area of the licence), which provide an income for the ISA to support the activities of countries that do not currently have their own capability to operate in the deep ocean.  And that is how the “common heritage of mankind” is implemented: nations that cannot access deep-sea resources in international waters can thereby receive a share when someone else exploits those resources.

ISA procedures in more detail

Applications for exploration or exploitation licences are reviewed by the “Legal and Technical Commission” (LTC) of the ISA.  That committee is comprised of 25 people with “personal qualifications relevant to the exploration, exploitation and processing of mineral resources, oceanography, economic and/or legal matters relating to ocean mining and related fields”  (note no explicit mention of environmental qualifications in membership there, beyond the broad term “oceanography”). Those 25 people (and here is a list of the current LTC members) effectively have responsibility for environmental stewardship of 45% of our planet’s surface (the proportional area of international waters) with regard to mining.

The majority of current LTC members, whose five-year term ends in 2016, are geologists or geoscientists, typically with relevant experience from petroleum or mineral prospecting.  Most of the remainder of the committee have backgrounds in law, and two current LTC members have backgrounds in environmental science or deep-sea biology.

LTC members are appointed by the Council of the ISA, which includes of representatives of nations that are the potential beneficiaries of the ISA’s activities.  The rules for the appointment of LTC members specify that “due account shall be taken of the need for equitable geographical distribution and the representation of special interests”.  Some members of the LTC are therefore the nominees of nations with perhaps most to gain from the award of mining licences under current ISA arrangements.  Individual LTC members, of course, cannot have any personal financial interest relating to seafloor mining in international waters.

Incidentally, some of the nations sponsoring applications for licences have voluntarily donated funds to cover the travel costs for delegates from developing nations to attend ISA meetings (e.g. see this press release), including meetings where those delegates consider licence applications by those nations.  I am not suggesting that arrangement in any way influences the decisions of committee members involved, but it seems an undesirable situation for the independent evaluation of licence applications (and given the overall >$14 million budget of the ISA, which already includes non-voluntary contributions from the same nations).

Overall, I think the ISA could benefit from greater transparency and public engagement.  The deep sea is the “common heritage of mankind”, and scientists exploring the deep ocean often go out-of-their way to share what they are finding and doing with wide public audiences, in the spirit of that common heritage.  The ISA, in contrast, seems almost hidden away in its headquarters in Jamaica, with a website that is rather impenetrable to non-technical visitors.  It does support training bursaries for scientists from developing nations, and convenes meetings and workshops with the scientific community about issues relevant to its work.  But as far as I am aware, it has never held any kind of public dialogue about its activities.  Given its responsibility to act on behalf of all of us, I hope that the ISA will consider increasing its efforts in wider public outreach.

An ISA anecdote

A couple of years ago, I was interviewed by a journalist writing a feature about mining at deep-sea vents.  I took them through the key points summarised in my previous post, including the suggestion that restricting vent mining in international waters to inactive sites could buy us time to develop a greater understanding of vent ecology before considering any mining at active sites.

A few days later the journalist phoned me back, saying that they had spoken to the ISA, and that everything was fine, because the ISA said that only inactive vent fields would be mined in international waters.

I was rather surprised, so I asked the journalist to clarify exactly where that restriction was specified in the ISA regulations for vent mining (having been through them carefully myself, and you can see them here).  After querying that point further with the ISA, the journalist called me back to report that the ISA simply expected that contractors would target inactive sites (for various reasons, for which I think there are credible counter-arguments), so the restriction was not made explicit in the regulations.

My concern about some of the procedures of the ISA perhaps took root at that point.  If restricting mining to inactive sites at present is desirable on environmental grounds, then that needs to be specified in the regulations.  Expecting an industry to regulate itself on such a point is weak, at best (particularly given that inactive sites are harder to find than active ones).

(An attitude of self-regulation perhaps seems to pervade other areas: for example, the responsibility for reporting incidents resulting in environmental damage currently rests with contractors – “A contractor shall promptly report to the Secretary-General in writing, using the most effective means, any incident arising from activities which have caused, are causing, or pose a threat of, serious harm to the marine environment” – Regulations on prospecting and exploration for polymetallic sulphides in the Area, Regulation 35, Section 1; this raises several questions in my mind, not least how “threat” and “serious harm” are to be interpreted or defined).

UN ISA vs UN CBD?

To me, currently there is an even more fundamental issue in the ISA’s procedures.  At present, the default outcome for any licence application is that it will be awarded (and if an application is rejected by the LTC, it has two further opportunities to be revised and resubmitted).  For a licence application to be rejected on environmental grounds, there must be evidence of likely environmental harm.  Specifically: “Prospecting shall not be undertaken if substantial evidence indicates the risk of serious harm to the marine environment” (Regulations on prospecting and exploration for polymetallic sulphides in the Area, Part II, Section 2; my bold-font emphasis added).

That is something of a reversal of the usual “precautionary principle”, whereby evidence of no likely harm is required for an activity to go ahead.  And that “precautionary principle” lies at the heart of another UN instrument: the Convention on Biological Diversity (CBD); for example, Principle 15 of the Rio Declaration states that “lack of scientific certainty shall not be used as a reason for postponing measures to prevent environmental degradation.”

Consequently, the principles by which the UN ISA currently operates are potentially at odds with those of the UN CBD.  And I will illustrate that conflict with a personal example.

In November 2011, I led the first remotely operated vehicle dives to hydrothermal vents on the SW Indian Ridge, where the Chinese Ocean Minerals Research Agency (COMRA) had already been granted an “exploration licence” by the ISA for the minerals at hydrothermal vents, despite no-one knowing what lived at those vents.

We collected the first samples of vent animals from that region, finding some species previously known from other regions, but also several new species.  Although there are certainly more colonies of those new species at other vent fields along the SW Indian Ridge, for now we don’t know where, or how interconnected their populations are.  The impacts of any “exploratory” mining activities at the site we visited will therefore be uncertain until we have that knowledge.

Subsequently, I prepared an application for that vent field to be designated an “EBSA” (“Ecologically or Biological Sensitive Area”) under the UN Convention on Biological Diversity.  The criteria were clear: the presence of populations of species not yet known anywhere else on our planet, and at potential risk from human activity.

The EBSA application was submitted by the UK delegation at a UN CBD meeting for the Indian Ocean in 2013, and perhaps not surprisingly, award of EBSA status was blocked.  I completely understand the reasoning: how could one UN body (the ISA) award China the rights for mineral exploration activities at that site, only for another UN instrument (the CBD) then to designate that same site “ecologically or biologically sensistive” with regard to human activities?

Hopefully, our EBSA application for the SW Indian Ridge vent field has helped to highlight a current gap between the ISA and the principles of the UN CBD.  Adding a biodiversity-conservation agreement to the UN Convention on the Law of the Sea is now being discussed, with the deadline for a decision at the end of 2015.  The options include establishing a new body to protect deep-sea biodiversity in international waters, or expanding the mandate of the ISA in environmental protection.

Environmental responsibilities in international waters are currently managed by “sector”, for example with separate instruments covering seafloor mining, cable laying, ocean dumping, shipping, and fishing.  That disjointed system is not best suited for the ecosystem-based approaches required to manage the impacts of our activities on the oceans, as recently highlighted by the Global Ocean Commission.

Recently some of my colleagues indicated that the International Seabed Authority (ISA) is best suited for the wider task of creating and managing deep-sea reserves for biodiversity, in a comment article published in the journal Nature.  The United Nations may indeed be the logical authority to oversee environmental protection in international waters.  But personally, for the reasons I have outlined here, I think that some fundamental reforms of the International Seabed Authority will be essential, if it is to be given greater responsibility for the environmental stewardship of our planet’s largest biome.

In the next blog post about deep-sea mining to accompany our free “Massive Open Online Course” (“MOOC”) on “Exploring Our Oceans”, we’ll take a look at some of the investors and contractors involved in developing the world’s first deep-sea vent mine, in the territorial waters of Papua New Guinea.

– Jon Copley, originally posted March 2014, updated October 2015

Supplemental, July 2014:

Soon after this post, the ISA conducted a “stakeholder survey” about deep-sea mining, inviting views from potentially anyone, “to allow the Authority to prioritize issues based on stakeholder responses”.  In total, it received 55 responses: 20 were from governments (did your government submit one? And did they ask you about it, before doing so?) and 9 were from mining companies.  The ISA is considering holding this consultation open, however, to allow more participation in how it should govern the use of resources in the ~45% of this planet under its jurisidiction.