29th session of the ISA Council - Part I - Summary and key takeaway
International Seabed Authority - Kingston
Managing mineral resources; regulating exploration and exploitation and promoting marine scientific research.
The Council approved the conclusions of a memorandum of understanding (MoU) between the Food and Agriculture Organization of the United Nations (FAO) and the International Seabed Authority (ISA) to strengthen their collaboration, particularly in relation to deep-sea fisheries and matters pertaining to areas beyond national jurisdiction. The MoU is based on Article 169(1) of the United Nations Convention on the Law of the Sea (UNCLOS) which mandates the Secretary-General to establish suitable arrangements for cooperation with relevant international organizations. In this MoU, FAO and ISA agreed to encourage and develop collaborative activities, where appropriate and practical, in areas of mutual interest, including in relation to (i) sharing and managing of information and non-confidential data related to deep-sea biodiversity, (ii) development of scientific approaches for the sustainable management of activities under each Party’s respective mandate in areas beyond national jurisdiction, (iii) development of coherent and transparent management approached in areas beyond national jurisdiction and (iv) promoting capacity-development related to the management of areas beyond national jurisdictions, increasing and development general knowledge and awareness of the deep-sea, and promoting gender equality in deep-sea research, particularly in developing countries.
Following the resignation of Mr. Adolfo Maestro González (Spain) from his position as a member of the Legal and Technical Commission (LTC) on 29 January 2024, pursuant to Article 163(7) of UNCLOS and Rule 80(3) of its Rules of Procedure, the Council proceeded with the election of Ms. María Gómez Ballesteros, currently Deputy Vice-President of the Organization of the Scientific Research Council in the Ministry of Science, Innovation and Universities of Spain, to fill the vacant seat on the LTC.
H.E. Mr. Juan José González Mijares (Mexico), the President of the Council of the 28th session, presented his Consolidated text of the Draft Exploitation Regulations (DRs) as per the agreed way forward by the Council in Part III of the 28th session. While not an agreed text, the Consolidated text was presented with a view to facilitating consensus and served as a starting point for the next phase of negotiations, together with certain draft provisions outlined in the Suspense document (to be further incorporated into Standards and Guidelines in due course) and the Compilation document which includes all written proposals received since conclusion of Part III of the 28th session. Regarding working modalities, although informal informals were proposed for conceptual discussions, in the light of discussions in the Council, the President opted for thematic discussions in plenary to address identified topics.
Upon his election as President of the Council for the 29th session, H.E. Mr. Olav Myklebust (Norway) continued to lead the negotiations of the text.
Tenth Meeting of the Open-ended Working Group of the Council on the financial terms of a contract under article 13, para. 1 of Annex III to the UNCLOS and under section 8 of the Annex to the Agreement relating to the implementation of Part XI of UNCLOS
The Chair: H.E. Mr. Olav Myklebust (Norway)
Key issues: incentives, review of a payment mechanism, the commencement of commercial production, environmental externalities.
The discussions covered several outstanding conceptual points in the Draft Regulations, including the determination of the date from which exploitation contractors will be expected to pay fees to ISA, the categories of financial incentives that may be provided to contractors (and the purposes of the financial incentives) and the extent to which environmental externalities may be internalized in the royalty mechanism. Delegations agreed to relegate the detailed elements of these rules into Standards or Guidelines. The President’s next iteration of the consolidated text will take into consideration the additional refinements proposed on the various provisions.
During the thematic discussion on equalization measures facilitated by Australia, a report on progress achieved during intersessional discussions was provided, including the introduction of a hybrid model for further deliberation. Dr. Wilde from the Commonwealth Secretariat stressed the importance of fairness and equity, proposing the use of an Effective Tax Rate as a metric for government payments. Two main options were discussed: the “hybrid model,” offering alternatives for payment and the “profit share model,” requiring a 25 per cent profit share to ISA. Participants expressed support for integrating equalization measures into the payment regime for transparency and parity while addressing concerns about subcontractors and environmental considerations. Aspects of the proposed hybrid model were clarified, emphasizing the need for further analysis. The dialogue highlighted the complexity of the issue and the necessity for a balanced approach. Participants expressed a preference for the hybrid model, with agreement on the need for further work and the inclusion of high-level provisions in the relevant standards.
Seventh Meeting of the Informal Working Group on Institutional Matters
Co-Facilitators: Mr. Salvador Vega (Chile) and H.E. Ms. Georgina Guillén Grillo (Costa Rica)
Key issues: effective control, regulatory control, economic control, sponsoring states of convenience, monopolization.
The discussions in the working group focused on the issue of whether a “regulatory control approach” or an “economic control approach” should be adopted in respect of the “effective control” over future exploitation contractors for the purposes of determining which Member State may act as a sponsoring State of such a contractor. The delegations diverged on this matter. There were cautionary notes against sponsoring States of convenience and monopolization risks. Some favoured a mixed approach, combining regulatory and economic control. Many participants expressed the view that there was no need for a definition of “effective control” and that the language in the legal regime set out by Part XI, with the guidance provided by the 2011 advisory opinion, was sufficient. Many participants also stressed that changing to an “effective economic control test” would disrupt existing sponsorship arrangements, undermine the effective participation of developing States in activities in the Area, create numerous practical challenges and potential legal conflicts and introduce instability and uncertainty in the Part XI legal regime. An interpretation of effective regulatory control is also supported by Article 9 (4) of Annex III to UNCLOS. The co-facilitators leading the discussion invited delegations to continue intersessional progress on implementation.
Seventh Meeting of the Informal Working Group on the Protection and Preservation of the Marine Environment
Facilitator: Dr. Raijeli Taga (Fiji)
Key issues: Environmental Compensation Fund (ECF), environmental impact assessment, environmental impact statement, REMPs, test mining.
Topics for discussion: ECF, Environmental Impact Assessment (EIA) and Environmental Impact Statement (EIS) processes, REMPs, test mining.
Participants discussed establishing an ECF, focusing on its scope, management and eligibility. Opinions varied on damages eligible for compensation from such an ECF and its management. As a second main topic, discussions also addressed restructuring EIA and EIS processes to enhance efficiency and preserve critical principles, including refining DR 46. Participants emphasized ongoing work to improve clarity and effectiveness. Additionally, deliberations on REMPs (the third main topic) explored their role and potential legal status, agreeing that REMPs are first and foremost policy instruments, while certain parts of them may be given effect via binding measures. As part of the fourth conceptual issue discussed, the importance of test mining in gathering EIA data and ensuring sound practices was underscored, with delegations expressing their preference for further time for the consideration of the matter.
The thematic discussion on establishing an ECF aimed to define its scope, management, eligibility, standards of proof, pre-funding concerns and regulatory delineations. Participants referenced legal frameworks and technical studies, emphasizing the necessity of addressing liability gaps comprehensively, especially in scenarios where contractors fail to meet their liabilities fully. Views diverged on the types of damages the fund should cover, ranging from broad coverage, including environmental, property and economic losses, to focusing solely on environmental damages. The ECF’s proposed role as a last resort received support, with many stressing its link to contractor liability and insurance. Management proposals ranged from advocating for an independent body to suggesting capacity-building within the Secretariat. Eligible claimants were debated, including ISA, contractors, affected states and individuals, with a consensus favouring a case-by-case approach. Discussions also tackled the standard of proof required for accessing the ECF, with debates centred on probability thresholds and aligning with polluter-pays principles. Concerns were raised regarding pre-funding environmental damage and delineating responsibilities between regulations and fund procedures, with suggestions for streamlined regulations covering key aspects and detailed standards focusing on technological mitigation and procedural guidelines for fund management.
During the thematic discussion on the EIA and EIS processes, the United Kingdom proposed restructuring the EIA and EIS provisions. This restructuring aims to allocate provisions more efficiently across DRs, Annexes, Standards and Guidelines. The proposal received wide consensus, emphasizing the importance of streamlining the text while preserving critical principles. Participants suggested further refining the structure and content, ensuring coherence and efficiency. They supported aligning the proposal with the DRs and emphasized the need for concise content and a uniform methodology. Specific comments were made on DR 46, including retaining references to “impacts,” aligning terminology with schedules and specifying “independent” or “competent” experts. The discussion underscored the importance of continuing intersessional work to enhance the clarity and effectiveness of the EIA and EIS processes.
During the thematic discussions on Regional Environmental Management Plans (REMPs), participants emphasized that REMPs provide a comprehensive understanding of regional characteristics and guide environmental protection measures. While recognized as flexible policy documents, views varied on their legally binding nature. Some proposed to give effect to certain parts of REMPs via binding measures, prompting debates on adoption procedures and legal implications. The role of contractors in supplying data and regular consultations for REMP development and implementation was underscored, ensuring a harmonized approach to environmental protection. Opinions differed on setting time frames for REMPs establishment.
The thematic discussion on test mining?highlighted its importance in gathering data for EIAs and ensuring environmentally sound mining practices. Participants debated the purpose, timing and regulatory framework for test mining. While some advocated for conducting test mining during the exploration phase, others suggested options during early exploitation or pre-exploitation phases. Clear regulatory requirements and integration into the EIA process were deemed essential. Several delegations suggested that test mining should occur under a contract, with robust monitoring and oversight by ISA. Further deliberation is needed to finalize the timing, regulatory framework and integration into mining processes. Participants also discussed relevant DRs, with proposals to align provisions with the 2023 BBNJ Agreement and prioritize the scoping report in the EIA process. The intersessional work led by Germany will continue restructuring provisions.
The thematic discussion on the definition of intangible cultural heritage, led by the delegation from the Federated States of Micronesia, focused on whether DRs should address this matter, how best to define it if included, and what regulatory language would be appropriate. Views largely supported incorporating relevant provisions, considering the duty of States to preserve cultural heritage in the Area. References were made to the extent to which the 1972 and 2001 UNESCO Conventions may be relied upon. Opinions differed on whether regulations should focus solely on tangible cultural heritage or also encompass intangible aspects. Suggestions included distinguishing between tangible and pure intangible cultural heritage, with the latter potentially addressed through environmental designations involving local communities. It was generally agreed that further discussion was needed to operationalize these provisions effectively, including clear data-collection processes and definitions of cultural sites.
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Negotiations of the President’s consolidated text
President: H.E. Amb. Mr. Olav Myklebust (Norway)
Key issues: exploitation contract, transfer of rights, change of control, documents submission, ECF, EIA, Environmental Performance Guarantee, commercial production, reduction in production, suspension in exploitation, risk reduction, health standards, reasonable regard, preventing incidents.
The negotiations of the President’s consolidated text proceeded section by section and entailed a careful joint reading and discussion of DRs. The discussions reached DR 35 and will resume from DR 36 during the second part of the 29th session, with a view to concluding a first reading of the President’s consolidated text as soon as reasonably practicable.
During the thematic discussion on the inspection mechanism to support the development of DRs, facilitated by Mr. Terje Aalia from Norway, various proposals were presented. These included the establishment of a Compliance Committee as either a subsidiary organ of the Council or part of the LTC. Germany proposed a mixed model, suggesting a new body as a subsidiary organ of the Council to assist in cases of non-compliance. Concerns were raised about overlapping functions and the importance of respecting competences allocated by UNCLOS to the LTC. It has also been suggested that further legal assessment of the position and establishment of the Compliance Committee is required. Participants emphasized the need for transparency, independence and efficiency in the inspection mechanism. They discussed the scope of decision-making powers, composition, nomination process, voting rights and cost-bearing of the Compliance Committee. There were differing opinions on institutional placement, with some advocating for a stand-alone body reporting directly to the Council, while others favoured inclusion within the LTC.
As of 31 January 2024, ISA administers 30 active contracts for exploration, of which 19 are for the exploration for polymetallic nodules, seven are for the exploration for polymetallic sulphides and four are for the exploration for cobalt-rich ferromanganese crusts. Contractors and the Secretary-General conduct joint periodic reviews of the implementation of plans of work for exploration at intervals of five years. Five periodic review reports were submitted between February and October 2023 and the Secretariat is currently undertaking the review of these reports. The report highlighted ongoing discussions with contractors to ensure compliance with regulations and environmental protection measures. Extensions of exploration contracts were also discussed, with the preparation and signing of the extension agreement between ISA and JSC Yuzhmorgeologiya in March 2024. The report further addressed the status of relinquishment, where contractors must relinquish portions of exploration areas according to regulations. Notably, the Council granted Ifremer’s request for a one-year deferral of relinquishment, with its first relinquishment report submitted in October 2023. Additionally, JOGMEC submitted its second relinquishment report on 26 January 2024. The report also highlighted the creation of a periodic review report template by the LTC to enhance the quality of contractor reports. The Secretary-General recommended issuing this template as an official reporting format to ensure consistency and improve the analytical depth of periodic reviews. The Council was invited to take note of the status of the contracts for exploration, the information on the periodic review of the implementation of approved plans of work, the status of relinquishment, and the progress of extension agreements, and consider adopting the five-year periodic review report template as an official reporting template for contractors.
The note on the relinquishment of 50 per cent of the area allocated to the Institut fran?ais de recherche pour l’exploitation de la mer (Ifremer) under the contract for the exploration for polymetallic sulphides between Ifremer and ISA provides an overview of the relinquishment process. The contract was signed on 18 November 2014, covering an area of 10,000 km2. As per regulations, Ifremer was required to relinquish at least 50 per cent of the allocated area by 18 November 2022. However, due to the impacts of the COVID-19 pandemic, Ifremer requested and received a one-year deferral for the first relinquishment to 18 November 2023. On 9 October 2023, Ifremer submitted a report to the Secretary-General, including cartographic material showing the relinquished and remaining cells. After a technical review by the Secretariat, the LTC noted that Ifremer had complied with its relinquishment obligations. The report outlines that a total of 5,000 cells were relinquished, covering an area of 5,000 km2. These relinquished areas have reverted to the ISA. The Council adopted the report.
The LTC meetings convened from 4 to 15 March 2024. Mr. Erasmo Lara Cabrera was re-elected as Chair and Ms. Sissel Eriksen as Vice-Chair. A total of 31 members participated, including Ms. María Gómez Ballesteros, nominated by the Government of Spain. The LTC reviewed intersessional activities from July 2023 to February 2024. Regarding contractor activities, the LTC noted the status of exploration contracts, periodic reviews and training programmes. It welcomed the report on training and the launch of the ISA-Capacity Development Alumni Network (iCAN) by the Secretariat on 5 February 2024. The LTC recognized efforts to increase training opportunities for women and selected 21 candidates for training programmes, including nine women, totalling 99 candidates selected since July 2023. Recommendations were reviewed to guide contractors and sponsoring States on training programmes. The LTC also adopted criteria to identify contractors at risk of non-compliance and decided on modalities for exchanging views between contractors and the LTC. The LTC also addressed contractors’ strategies for transitioning to exploitation and noted relinquishments of exploration areas. In considering applications for exploration plans, the LTC reviewed submissions from the Earth System Science Organization, the Ministry of Earth Sciences of India and requested further information regarding applications. Regulatory activities focused on the development of rules for certification of origin for minerals from the Area and environmental threshold values. The LTC discussed the importance of including these elements in the DRs. Progress was also noted on REMPs, with the LTC revising a standardized procedure and deciding to develop a guidance document. An international expert workshop on REMPs in the Northwest Pacific Ocean was highlighted, along with progress on data management, including endorsement of the strategic road map for data management and revisions to the DeepData user manual and reporting template.
Responding to a request of the ISA Assembly made at its 28th session, the Secretary-General presented a detailed report for the consideration of the Council concerning the implications of a decision adopted by the OSPAR Commission for the protection of the marine environment of the North-East Atlantic current and Evlanov Sea basin marine protected area and the exclusive mandate of ISA over the Area. The Assembly requested the Secretary-General to include in the report details of the communication that had taken place between the Secretariat and the OSPAR Commission regarding the decision, an assessment of the potential impact of the decision on ISA’s mandate and recommendations on how to prevent interference with ISA’s mandate while enhancing cooperation and consultation with relevant organizations.
Some delegations expressed concerns about the potential impact of decisions by the OSPAR Commission on the legal regime set out by UNCLOS and the 1994 Agreement, as well as in relation to the recognized ISA mandate and requested detailed reports from the Secretary-General regarding communications with OSPAR. They also emphasized the importance of ensuring that ISA’s mandate in relation to regulation and organization of activities in the Area, including the protection of the marine environment, is respected as part of the overall mission assigned to it to act on behalf of humankind. A proposal was made to consider developing a framework for enhanced coordination between ISA and OSPAR.
The polarization of debate on the exclusive mandate of ISA in various organizations was also noted. It was suggested to develop suitable arrangements for consultation and cooperation and that ISA Members remain vigilant on this matter should the mandate and competence of ISA be discussed in other forums.
Several delegations recognized the specific and exclusive mandate of ISA. They noted that the mandate of OSPAR does not include the duplication of the mandate and competences of those assigned to ISA. Some delegations noted that both organizations may have complementary roles to play when it comes to the protection of the marine environment in the Area. Most of the delegations emphasized that the measures adopted by OSPAR were only binding for OSPAR contractor parties.
Several delegations were of the view that the MoU between the two organizations sufficiently ensures proper consultation and cooperation between the two organizations. Further cooperation and consultation between the ISA and OSPAR secretariats were identified as essential.
The Secretary-General agreed to provide regular updates on the status of cooperation between the two organizations. The Council took note of the report.
The Council took note of the?Report of the Secretary-General on incidents in the NORI-D contract area in the Clarion-Clipperton Zone?and the immediate temporary measures, including maintaining a safety distance from NORI’s vessel of at least 500 metres (ISBA/29/C/4/Rev.1).
While Nauru, sponsoring State of NORI, recognized the right to protest at sea for peaceful purposes, it also stressed that this must not undermine the rights of a sponsoring State and the rights of a contractor to conduct its research programme upon request of the LTC and as part of NORI’s programme of activities under its contract. Nauru also stressed the need to take action to prevent obstruction of activities in the Area, the exercise of sovereign rights as a sponsoring State and the protection of human life at sea. Recognizing the current lacuna, Nauru proposed the establishment of a safety zone up to 500 metres around vessels and installations conducting activities in the Area as an interim measure until a revision of ISA exploration regulations. Nauru also called for revisiting the observer status of Greenpeace at the ISA.
The Netherlands, the flag State of the Greenpeace vessel, stated its position on the right to protest at sea and described in detail the exercise of its flag State’s responsibilities and exclusive jurisdiction over the vessel. They referred to the decision of the Amsterdam District Court and the Report of the Human Environment and Transport Inspectorate of the Dutch Ministry of Infrastructure and Water Management. They stated that the Council was not obligated to take any additional actions in relation to the Secretary-General’s report on the matter, bearing in mind that the relevant protests had come to an end, the Amsterdam District Court’s decision, the Inspectorate’s report and its follow-up with Greenpeace International and the fact that legal remedies continue to be available to the interested parties in accordance with the laws of The Netherlands.
Reference was also made to the communication from Greenpeace International, observer to ISA, in its capacity as an interested party.
The exchange of views that followed the statements diverged on the manner to address the issue under discussion but called for dialogue to ensure the safety of life at sea for protesters and contractors. It was not questioned that ensuring safety at sea had guided actions taken and that the exercise of the right to protest cannot compromise safety at sea. It was recalled that what is safe on land can quickly become risky at sea. A suggestion to adhere to a code of conduct was made. It was also recalled that under Article 146 of UNCLOS, with respect to activities in the Area, necessary measures shall be taken by ISA to ensure effective protection of human life. Some delegations favoured the adoption of measures in order to prevent interference with contractors’ activities, including by means of establishing a safety zone as proposed by Nauru. However, several delegations expressed that ISA should cooperate with the IMO Maritime Safety Committee. Although a large majority of delegations supported the right to protest at sea, they also recognized that such a right was not absolute and was limited by the rights of other States in their exercise of the freedom of the high seas, and also with due regard for the rights with respect to activities in the Area under the auspices of ISA in accordance with UNCLOS. Some delegations considered that Regulation 33 of the ISA’s Regulations was not a sufficient basis for the Secretary-General to take immediate measures as this provision did not refer to the safety of life at sea and did not provide any basis for the immediate measures issued on those grounds. Others were of the view that such immediate measures of a temporary nature were necessary and appropriate and that the Secretary-General had fulfilled his obligation under UNCLOS and accordingly, asked that the Secretary-General continue to take appropriate and necessary action should the need occur.
Before closing, the President of the Council for the 29th session, H.E. Mr. Olav Myklebust (Norway), progressed with oral reports from facilitators and rapporteurs on various topics, including financial terms, equalization measures, environmental matters and intangible cultural heritage. Following the reports, various delegations expressed their views on different matters.
A participant highlighted the importance of safety at sea and proposed continued discussion in the next session. Others supported this notion, suggesting that the existing agreement between ISA and the International Maritime Organization could guide future discussions. However, opinions varied among delegations regarding the urgency of addressing safety at sea. Some suggested deferring the discussion until July, while others emphasized the urgency and importance of immediate action.
In response to queries from delegations regarding procedural matters, the President outlined the progress made and encouraged delegations to submit written contributions by 1 May 2024. He also proposed resuming discussions in July and possibly scheduling additional meetings in October and November to maintain momentum.
The Secretary-General thanked the contributing delegations.
The first part of the 29th session of the ISA Council concluded with discussions on technical feasibility and plans for future sessions.
The second part of the 29th session of ISA will begin on 1 July 2024 with the following meetings:
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American Samoa Economic Development Council
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American Samoa Economic Development Council
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