The Authority now faces a difficult decision. Allowing mining in the absence of regulations would undermine the letter as well as the spirit behind the 1982 Convention and the 1994 agreement. Since the 1982 Convention has been regarded as “the constitution for the ocean”, allowing mining activities to commence now may be deemed as “unconstitutional”. It will also almost certainly expose the ISA to litigation – it cannot yet guarantee the environmental and societal implications, or that it is fit for purpose as a regulator to exercise control over mining operators.
On July 10, of course, the ISA could simply postpone mining activities and not allow unregulated mining to occur. There is a time for everything, and at this moment of reckoning, states should unite to send a clear message calling for more circumspection, adherence to good governance and informed decision-making. But when the ISA inevitably begins accepting applications for deep-sea mining operations, there will remain a lingering question: How much control will authorities have over operations to ensure environmental protection of marine habitats far from coastlines, or will it turn into a wild high seas free-for-all?
While the ISA is negotiating the mining code to establish the rules under which companies will be allowed to extract minerals from the seabed, the clock will be ticking. Although commercial mining has not yet started, companies such as De Beers, China Minmetals Corporation, UK Seabed Resources Ltd and others from Tonga, Nauru, Germany, Japan and Singapore are lining up to make it a reality.
As a result, there are fears environmental protection for international waters will be drowned in the rush by these companies hoping to exploit one of the planet’s final frontiers for mining. Deep-seabed mining for metals such as cobalt, manganese and nickel could potentially support mass production of essential electronics such as smartphones and tablets as well as stimulate the development of green technology like electric vehicles and wind turbines.
Realizing the imminent impact of deep-sea mining and how it could affect the marine environment, the 193 member states of United Nations in June this year reached what could well be a turning point in the protection of the world’s oceans – the adoption of the High Seas Treaty, officially known as the Treaty on Biodiversity Beyond National Jurisdiction. Without such a treaty, the high seas and deep seabeds beyond national jurisdictions had for decades been governed and managed in a fragmented way. The Treaty, which took two decades to finalize and will not be signed off until later in 2023, seeks to change this by establishing a new framework to address marine resource conservation with new management tools and institutional mechanisms for decision-making and equitable benefit sharing.