The International Seabed Authority, the obscure intergovernmental organization responsible for regulating mining on the deep seabed beyond national jurisdiction, meets for its 17th session next week. Deep seabed mining was one of the critical issues at the Third United Nations Conference on the Law of the Sea and it famously caused intense disagreements between developing countries and developed countries which delayed the entry into force of the 1982 Law of the Sea Convention until some major reforms were adopted in the mid-1990s. Ironically, the prospects for deep seabed mining dropped after the adoption of the 1982 Convention when new land-based sources of minerals were discovered. To some extent, deep seabed mining has been a theoretical prospect over the past decade. All that may be about to change.
One of the issues on the agenda at the upcoming meeting of the Authority is the approval of four applications for the exploration of deep seabed minerals. Two of these applications come from the private companies. This is the first time that the private sector has made an application to the Authority. This is significant because it demonstrates that deep seabed mining might at last be commercially viable.
These two applications are sponsored by Nauru and Tonga. In fact, the applications were initially put forward a few years ago but they were withdrawn over concerns about the potential liability of the sponsoring states. These concerns appear to have been allayed by the advisory opinion on this issue delivered by the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea back in February 2011 which clarified that sponsoring states cannot be held directly liable for transgressions by mining contractors.
The other two applications to be considered by the Authority come from Russia and China. A number of states are already conducting exploration activities in the International Seabed Area. These new applications are significant because they concern the exploration for polymetallic sulphides, a form of mineral that was not initially included within the scheme laid out in the 1982 Convention. Indeed, the Authority only adopted regulations for the exploration for polymetallic sulphies last year, after several years of negotiation. It may be that these new forms of minerals are more important than the polymetallic nodules for which the deep seabed mining regime was initially designed.
It would seem that there is an increasing amount of activity in relation to deep seabed minerals. However, it must be noted that all the current activity is only concerned with exploration for minerals. No exploitation is yet taking place. This phase of operations could be years away. Indeed, the Authority has not yet adopted regulations on exploitation. It is to this task that it must now turn itself.