One Boundless, Borderless Fluid Being: The Ocean

In recent months, there have been major efforts to protect the ocean through the ratification of the Agreement on Biodiversity Beyond National Jurisdiction (BBNJ). This landmark agreement, often referred to as the “High Seas Treaty,” establishes a much-needed legal framework for conservation and sustainable use in the vast stretches of open water that lie outside any single nation’s control.

At the same time, the Council of the International Seabed Authority (ISA) recently concluded Part I of its 31st Session in Kingston, Jamaica. The meeting was marked by a sense of urgency as the Council faces a legal “two-year rule” deadline to finalize the “Mining Code.” Within the Council, significant divisions remain between pro-mining states and a growing coalition of over forty countries calling for a moratorium or precautionary pause.

Despite the lack of a finalized code, the Council reported progress on some fronts. For instance, it reached a near-consensus on establishing a dedicated “compliance committee” to safeguard deep-sea ecosystems and ensure that mining activities comply with environmental regulations. Progress was made on a fiscal mechanism designed to ensure that deep-sea mining is taxed at a rate comparable to land-based mining. Delegates broadly agreed that environmental and baseline monitoring data should be non-confidential and publicly available. However, they remain divided on how long commercial data should remain protected. There was a strong push to make Regional Environmental Management Plans (REMPs) legally binding and a prerequisite to any mining applications.

However, the session highlighted deep divides that continue to stall the process. Many nations, including France, Germany, Brazil, and the African Group, reiterated that mining should not proceed until a robust regulatory framework is in place. The Council continues to grapple with the “two-year rule” triggered in 2021 by Nauru to pressure the ISA to finalize regulations. Invoked by Nauru on behalf of a The Metals Company (TMC) subsidiary, this move aimed to initiate commercial mining in international waters. Critics argue that rushing the process to meet a deadline risks catastrophic environmental damage. Finally, with the High Seas Treaty now in effect, the Council discussed how the ISA’s mandate overlaps with this new treaty.

These are the major points of the High Seas Treaty that create potential conflicts or legal tensions with deep seabed mining and the International Seabed Authority:

Environmental Impact Assessments: The treaty sets high, modern standards for Environmental Impact Assessments (EIAs). The treaty requires that activities under “other bodies” (like the ISA) should not undermine the treaty’s conservation goals. There is a potential legal clash over whether the treaty’s stricter EIA standards should apply to mining contractors, potentially slowing down or blocking mining projects that cannot meet them.

Area-Based Management Tools and Marine Protected Areas: A core pillar of the treaty is the ability to establish Marine Protected Areas (MPAs) in international waters. If a treaty-mandated MPA is established in an area where the ISA has already granted a mining exploration contract, it creates a direct jurisdictional conflict. The High Seas Treaty aims to protect 30% of the ocean by 2030.

Marine Genetic Resources and Benefit Sharing: The treaty introduces a framework for sharing the benefits (both monetary and scientific) from marine genetic resources—the DNA and chemical compounds of deep-sea organisms. Scientists argue that mining could cause the extinction of species before their genetic potential is even discovered. This creates a conflict between the extractive value (minerals) and the biodiversity value (genetic code) of the same seafloor.

The “Not Undermine” Clause: Article 5 of the treaty states that the agreement shall be implemented in a manner that does “not undermine” existing legal instruments and frameworks. This clause is a double-edged sword. Mining proponents argue it means the treaty cannot interfere with the ISA’s authority to permit mining. However, conservationists argue, as said above, that the ISA’s activities must “not undermine” the BBNJ’s objective of protecting biodiversity.

Precautionary Principle vs. “Common Heritage of Mankind”: The treaty leans heavily on the precautionary principle; the idea that if an action has a risk of causing harm to the environment, in the absence of scientific consensus, the burden of proof falls on those taking the action. UNCLOS (the Law of the Sea) defines seabed minerals as the “Common Heritage of Mankind,” which the ISA interprets as a mandate to organize and control mining for the benefit of all nations. These two principles clash: one prioritizes “leaving it alone” until we know more, while the other prioritizes “extracting it fairly” for global economic development.

The fact that the ocean is one boundless fluid being mandates an extremely cautious approach not only in the ocean beyond national jurisdiction, but also within them.

Photo: courtesy of Ivan Bandura, available in the public domain via Unsplash.