Deep-Seabed Mining: Observations from the International Seabed Authority's March 2025 Council Meeting
- Samantha Robb
- Apr 24
- 10 min read
Samantha Robb, Senior Associate at Ocean Vision Legal
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Key words: Deep-seabed mining, ISA, Ocean Governance, Law of the Sea, Marine Protection
From 17 to 28 March 2025, the International Seabed Authority (ISA), the inter-governmental body mandated to regulate deep seabed mining (DSM) in areas beyond national jurisdiction (ABNJ) known as “the Area,” convened Part 1 of its 30th Council session to continue negotiations and discussions on DSM in ABNJ, particularly its negotiations on exploitation rules, regulations, and procedures.
This post provides a comprehensive overview of the March 2025 session of the ISA’s Council, where negotiations on the Mining Code continued amidst mounting legal and political tensions. It explores the background of the two-year rule, the status of the ongoing negotiations on exploitation regulations, and the announcement by The Metals Company of its intention to seek a mining licence under US law.
The two year rule & pressure on the ISA to finalise the Mining Code
In the DSM world, urgency has been growing since 2021 as a result of the so-called “two year rule,” which has placed pressure on the ISA to finalise the Mining Code (more information on the Mining Code below). The two-year rule comes from a provision (Annex, sec.1 (15)) in the 1994 Part XI Implementation Agreement, an international agreement that was agreed to by States that applies alongside United Nations Convention on the Law of the Sea (UNCLOS) to govern DSM in the Area. If the “two-year rule” is triggered, it imposes a two-year deadline on the ISA’s Council to finalise its exploitation regulations. It must be noted that there are different ways in which this regulation can be interpreted and how it is applicable to the negotiations on the draft exploitation regulations (for a detailed analysis see Singh 'The Invocation of the 'Two-Year Rule' at the International Seabed Authority: Legal Consequences and Implication'). This provision was triggered on 25 June 2021 by the Republic of Nauru through a letter to the president of the Council. In this letter the President of Nauru indicated that a Nauruan sponsored entity, Nauru Oceans Resources Inc (NORI) (a subsidiary of the Canadian company ‘the Metals Company’ (TMC)) intended to apply for approval of a plan of work for exploitation in two years.
This two year deadline expired in July 2023. Following the expiration of the two year deadline, the ISA’s Council in a resolution in July 2023 (ISBA/28/C/24) decided that it would aim to finalise the Mining Code during its 30th session in 2025. Notably, however, it is not obliged to do so. Importantly, the Council also passed another resolution (ISBA/28/C/25) in July 2023 relating to the two-year rule wherein it decided:
to further consider actions that the Council may take if an application for a plan of work for exploitation were to be submitted before the Council has completed the draft exploitation regulations.
that if an application for a plan of work is submitted before the Council has completed the Mining Code the Council will decide how to interpret the legal implications of this provision at the next Council meeting after the Plan of Work is received.
As discussed more below, the Council is not yet close to finalising its Mining Code. In fact, a 2024 Study determined that there are more than 30 major issues that remain outstanding. It has also become clear that despite the Council’s decision to aim to finalise the exploitation RRPs in 2025, this appears extremely unlikely, particularly if the ISA is to adopt exploitation regulations that are comprehensive, robust, and meet States obligations under Part XI of UNCLOS.
NORI, sponsored by Nauru, has not yet submitted its application for a Plan of Work, but continues to indicate its intention to do so, with TMC announcing on 18 November 2024 that NORI will submit its application for a Plan of Work by 27 June 2025, prior to the ISA’s July Council and Assembly meeting. Nauru also formally requested that an agenda item be included at the Council’s March 2025 meeting to clarify the submission and review process for an application for a Plan of Work before regulations are in place.
This set the scene for the ISA’s 30th session of meetings to take place in 2025, this Council meeting of March being the first part of this 30th session.
A Change in leadership at the ISA
Importantly, this was the first meeting under the leadership of newly elected Secretary-General Ms. Leticia Carvalho, who was elected at the ISA’s Assembly meeting in July 2024, and whose term started in January 2025. This change in leadership has seemed to usher in a more transparent and inclusive atmosphere within the ISA. In an effort to promote dialogue among diverse stakeholders, the Secretary-General organised stakeholder lunches, which included sponsoring states, exploration contractors, and observers.
A welcome development was the inclusion of more Indigenous voices and observers at the Council meeting as well as increased interactions between these observers and the Secretary-General. Much-needed momentum is building for Indigenous knowledge to have a seat at the table both within the draft exploitation regulations and at the ISA more generally. Another notable highlight was the delivery by Greenpeace of messages from over 11,000 individuals advocating for Ocean protection, which was acknowledged on the ISA's social media platforms, emphasising this more inclusive atmosphere at the ISA.
The Mining Code: Outcomes of the Continued Negotiations on Draft Exploitation Regulations
Currently, the ISA is developing its Mining Code. The Mining Code comprises a complete set of rules, regulations and procedures to regulate and manage prospecting, exploration, and exploitation of the Area’s mineral resources. Exploration in the Area has been taking place for years (with the ISA having granted 31 exploration contracts) and is governed by three sets of Prospecting and Exploration regulations. However, exploitation has not yet commenced in the Area as the Council, the executive organ of the ISA, consisting of 36 ISA member States (Art. 161 UNCLOS) continues its negotiations on its Draft Exploitation Regulations. These negotiations have been taking place, in good faith, for many years to finalise the Mining Code. Only once a Mining Code is in place, can States consider permitting exploitation of the resources in the Area (which was confirmed by the Council’s July 2023 decision discussed above). While the negotiations on the rules, regulations and procedures still have far to go, there were several encouraging trends that emerged during the negotiations at the Council’s March 2025 meeting:
Environmental Goals & and a General Policy on Environmental Protection: A draft regulation relating to Environmental Goals that had been removed from the regulations was reinstated, with States emphasising how central these environmental goals are for protecting the marine environment from the harmful effects of DSM. There was growing support among States for establishing a comprehensive environmental policy at the ISA.
Robust and Independent Science: The need for independent scientific research was emphasised repeatedly by States throughout discussions. There was also significant support shown for ensuring that science informs decision-making on the Draft Exploitation Regulations.
Traditional Knowledge: There was significant support for traditional knowledge being consistently taken into account whenever it is mentioned in the Draft Exploitation Regulations, rather than only “when appropriate”. Traditional knowledge concerning the deep seas exists and should always apply whenever any impact assessment or decision-making on DSM is being undertaken.
Standard of Harm to the Marine Environment: In a significant win for marine protection, in the context of the nitty-gritty of legal wording and why it matters in negotiations, there appeared to be consensus by States that the threshold of “harmful effects” should be applied over “serious harm” with regard to harm to the marine environment. This mirrors the wording found in UNCLOS and makes it clear that the standard of harm that should trigger concern is not only serious harm but general harmful effects that arise from DSM activities.
State Sponsorship & Effective Control: For private companies to take part in DSM in the area, they must be sponsored by a State. This State Sponsorship relationship is key for the participation of developing States in the DSM regime. A key question relating to this notion is: which State truly controls the company? At the March 2025 Council meeting, more support emerged for an “economic control” approach. This means looking at who really runs the company, i.e. who owns it, who votes on major decisions, or who controls the board. This is a more meaningful approach than a purely “regulatory control” approach which only considers where the company is incorporated or registered. See effective control and state sponsorship in DSM, which explains the centrality of this notion to the DSM regime, especially concerning appropriate accountability over private contractors conducting DSM in ABNJ, and ensuring meaningful participation by developing States in the DSM regime. An outcome of such discussion at the March 2025 meeting was that effective control discussions within the ISA will continue in an intersessional Working Group led by Costa Rica and Chile.
Despite these positive developments, there are still numerous outstanding big ticket items that need to be addressed before the Exploitation Rules, Regulations, and Procedures can be finalised. To name a few, these include inspection, compliance and enforcement mechanisms that will be in place to monitor DSM in the Area, the financial model and mechanism that will be used to equitably distribute the profits from DSM in the Area (which is required under UNCLOS and is central to the spirit of the DSM regime), how and what test mining will be conducted, and the content of the crucial environmental standards and guidelines that need to be in place so that adequate environmental impact assessments can be conducted. These are all crucial provisions that need to be properly considered and agreed to before exploitation can be considered.
On Nauru’s requested agenda item relating to the process for an application for a Plan of Work before regulations are in place, Nauru submitted a non-paper to the Council (towards the end of the Council meeting) to assist States with their discussions on the procedural steps that will need to be taken for the assessment of an application for a plan of work before the exploitation regulations have been finalised and adopted by the Council. There was no definitive outcome of this discussion, which will continue intersessionally and at the July 2025 Council meeting.
In addition, discussions around human rights, and particularly the human right to a healthy environment, remain glaringly absent at the ISA. The recent report by the Special Rapporteur on the human right to a clean, healthy and sustainable environment on The Ocean and Human Rights emphasises that “[a] human rights approach, including the right to a healthy environment, can also facilitate the implementation of such relevant treaties as the United Nations Convention on the Law of the Sea, which recognizes the ocean as a common heritage of humankind and the obligation of States to protect it. Because of the links between a healthy ocean and human rights, the obligation of ocean protection should be interpreted in relation to human rights.” It is worth nothing that since the March 2025 Council meeting, the UN Human Rights Council passed a resolution on 4 April 2025 (A/HRC/58/L.26/Rev.1) relating to the ocean and human rights, affirming, among other things, that “that respect for and the protection and fulfilment of the human right to a clean, healthy and sustainable environment contribute[s] to addressing ocean degradation, and at the same time recognizing that maintaining a healthy and clean ocean contributes to the protection of a range of human rights,”
As always at the ISA, there were debates during the negotiations about finding the balance between the need to finalise the exploitation regulations and taking the necessary time to ensure the exploitation regulations are as robust and comprehensive as possible. Many states cautioned against hastening the process to accommodate commercial interests, emphasising the importance of comprehensive and effective regulations.
Announcement by The Metals Company (TMC) to apply for a mining license through a United States regulator
The most startling development at the Council meeting was TMC’s announcement on the afternoon before the end of the Council session (27 March 2025) that it intends seeking permission from the National Ocean and Atmospheric Administration (NOAA) in the USA for a permit for deep seabed mining (DSM) in international waters. Such a permit would fall under the ambit of the Deep Seabed Hard Mineral Resources Act (DSHMRA). DSHMRA was established in 1980 as an interim domestic DSM legal regime pending adoption of an international regime to govern DSM in ABNJ. UNCLOS Part XI and the 1994 Part XI Implementation Agreement comprise that international regime, but the USA never ratified UNCLOS or the 1994 Part XI Implementation Agreement. If an application for a Mining permit were to be submitted to NOAA under the DSHMRA this would skirt regulation by the ISA altogether. While DSHMRA remains in force in the USA, such a move by TMC would be entirely contrary to the spirit of Part XI of UNCLOS which provides for the ISA as the sole authority through which DSM in the Area is managed (Art 137, 157 UNCLOS). In addition, UNCLOS declares the Area and its resources as the common heritage of humankind (Art. 136 UNCLOS), which can be considered as customary international law (and potentially even a jus cogens norm (from which no derogation is possible) - see Cavalcanti de Mello Filho, ‘May the United States Unilaterally Conduct or Regulate Activities in the Area According to International Law?’)
TMC’s announcement was met with strong pushback by the new Secretary-General and States on the final day of the Council’s meeting. The Secretary-General reaffirmed the ISA’s position as the sole organisation through which DSM should be regulated in the Area and expressed her dedication to ensuring the ISA meets its mandate of ensuring DSM is conducted for the benefit of humankind. At least 39 States from across the globe took the floor to emphasise their support for multilateralism, the mandate of UNCLOS and recognising the common heritage status of the Area and its resources, as well as the ISA’s exclusive jurisdiction in relation to DSM in the Area. The Deep Sea Conservation Coalition and Greenpeace made strong statements directly addressing TMC’s announcement, reaffirming the absolute need for a precautionary pause on DSM. Notably, the USA did not make any interventions during this Council meeting, including in response to TMC’s announcement, and has yet to provide a public reaction to TMC’s announcement.
This reckless step by TMC appears to be a threat to the ISA member States to put them on terms to expedite the approval of exploitation regulations that are nowhere close to finalisation. The pursuit of commercial interests at the expense of the ISA’s authority and rights of all states, including developing states, to manage the common heritage of humankind should not be permitted. This move undermines the multilateral process and good faith negotiations by States at the ISA, and breaches international law.
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Ocean Vision Legal remains dedicated to monitoring developments at the ISA and advocating for legal frameworks and decisions that ensure the protection and preservation of the marine environment.
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