The International Seabed Authority (ISA) is a small and opaque UN-established organisation headquartered in Jamaica, a Caribbean nation known for its transparent blue waters.
Under the UN Convention on the Law of the Sea (UNCLOS) the ISA has a remarkably challenging mandate to “organize, regulate, and control all mineral-resource related activities in the Area for the benefit of humankind as a whole.” The ‘Area’ is no small patch, being “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction”.
The international seabed hosts vast quantities of polymetallic nodules, or potato-sized rocks that contain high concentrations of nickel, copper, cobalt, manganese and other metals and minerals that are essential for the clean energy transition. With nations desperate to secure supplies of these commodities, deep-sea mining (DSM) is being increasingly being pushed as a supply solution.
The ISA, which has previously issued 30 seabed exploration contracts (see below), is now under pressure to produce a mining code this year that would allow exploitation (mining) contracts to be granted.
Source: https://deepseamining.ac/
As the DSM issue hots up – and geopolitical tensions rise – more asset owners will have to decide and share their stance on DSM. There are complex ESG matters to navigate – and the issue is not simply whether DSM is more or less environmentally destructive than land-based mining or whether there is enough scientific evidence to answer this question.
UNCLOS says the international seabed is the “common heritage of (hu)mankind” and that its exploration and exploitation must be carried out for the benefit of mankind as a whole. So, to form a view on DSM, asset owners need to form a view on whether DSM will have a net benefit for humankind.
Because the ISA is at the heart of all of this, looking closely at its governance structure and approaches is vital.
The ISA has the conflicting roles of regulating contractors; seeking to maximise revenue from them through royalties, et cetera; and also being responsible for protecting the marine environment from the harmful effects of DSM. ‘The Enterprise’ is an ISA organ that will also be allowed to conduct its own activities, including “the transportation, processing, and marketing of minerals” in the Area.
Entities applying for exploration – and later, exploitation – contracts are meant to be sponsored by one of the 169 ISA member states “of which they are nationals or by which they are effectively controlled”. However, the ISA has issued some contracts to private companies that don’t seem to meet this requirement.
What’s in it for humankind?
Whether DSM can be done profitably is not just a commercial question for project proponents and their investors. If it cannot be demonstrated DSM is commercially viable then arguably the ISA would be duty-bound not to issue mining licences.
DSM needs to be for the benefit of humankind as a whole and, as the ISA acknowledges, the main benefit that will be derived will be the revenue extracted by the fiscal regime that is still being developed. So it needs to show that this revenue will be large enough to more than offset the negative impact on the common heritage of humankind (e.g. the loss of natural capital and ecosystem services).
A recent academic study Equitable sharing of deep-sea mining benefits: More questions than answers concludes that “direct distribution to member states of individual portions of the proceeds from mining in the Area would be likely to result in very small amounts, and it may be difficult to find consensus around an ‘equitable’ formula”.
The authors (Wilde et al, 2023) are also concerned by an ISA proposal to direct fiscal proceeds into a Seabed Sustainability Fund that would finance “the restoration and rehabilitation of the Area” because this burden “should appropriately lie with the contractors (miners)”.
ISA member Australia has been an active participant in working groups developing the DSM payment system addressing issues such as taxation, royalties, profit-sharing and equalization measures. To date the focus seems to have been on how to maximise revenue coming into the ISA – and not much on deciding how and where this revenue should be distributed to humankind.
Blue Marine Foundation’s In Clear Sight – Shining a Light on the Opaque Deep-Sea Mining Industry report fears that “apart from a small number of contractors and states holding ISA contracts who could potentially receive a windfall, only a few others will stand to benefit, as mining may only generate small amounts of money for the ISA to redistribute”.
Source: https://deepseamining.ac/
The Foundation argues payment models don’t appropriately address the extent of the damage to the marine environment and ecosystems. “It is patently obvious that the ISA is not ready to proceed to the exploitation phase,” the report said.
Profits?
Would DSM be profitable? The Canadian-based The Metals Co (TMC) run by Australian entrepreneur Gerard Barron certainly thinks so. Barron – who doesn’t mind being referred to as “Australia’s Elon Musk” – has made some remarkably bullish projections (see below).
Source: TMC December 2023
TMC describes its NORI and TOML projects in the Clarion-Clipperton Zone in the Pacific Ocean as the two “largest undeveloped nickel projects on the planet”.
But others are not so sure. Ocean explorer and entrepreneur Victor Vescovo believes DSM is unlikely to be profitable, given the “cost vulnerabilities” of operating “in an incredibly hostile environment”
Planet Tracker’s The Sky High Cost of Deep Sea Mining report believes the “astronomical” cost of cost of restoring deep sea ecosystems “is so high it is impossible for deep sea mining companies to pay for it and operate at a profit”. And it is unclear how restoration would be achieved given the nodules that will be mined took millions of years to grow.
Geopolitical tensions
Last month, 31 members of the US Congress wrote to the Secretary of Defense concerned by “the national security ramifications” of China’s “aggressive and brazen steps” to invest in DSM.” China holds five of the 31 ISA exploration contracts and has been pushing the ISA to finalise its miming code.
The letter was hyperbole, but Department of Defense has been directed to produce a “roadmap” showing how the US can source and/or process critical minerals from DSM “to decrease reliance on sources from foreign adversaries and bolster domestic competencies”.
Embarrassingly, the US is not an ISA member because it has refused to ratify UNCLOS. Barron has been trying to get the US to back his company, saying the nodules that TMC plans to vacuum off the seabed could be processed in the US.
TMC intends to lodge an exploitation application for NORI-D mid-year, by which time it expects the ISA’s mining code to be ready. However, back in 2021 NORI-D’s sponsor Nauru triggered an UNCLOS provision that means if even if there is no code the ISA would still have to assess and potentially approve an exploitation application.
Pacific islands
DSM is also a source of tension among Pacific Island Forum members. The Cook Islands, Kiribati, Nauru and Tonga all sponsor exploration contracts and are hoping mining will be eventually proceed. However, most other members, including Australia, support a moratorium.
A statement after the Forum’s meeting in the Cook Islands last November said “leaders recognised and respected the diversity of positions amongst Members on DSM’ and said there would be a ‘Talanoa Dialogue’ later this to build consensus on the issue.
At the Cook Islands’ request, Australia has funded an embedded advisor in the nation’s Seabed Minerals Authority to help build its capacity to regulate DSM .(The photo below shows polymetallic nodules took centre stage during Brown’s discussions with Australia’s Prime Minister).
Source: X @AlboMP
Norway
Meanwhile, last week Norway became the first country to open its own continental seabed (which is not covered by the ISA regime) to commercial DSM, with its parliament voting 80-20 to allow the issuance of exploration licences.
Norway’s decision has generated a lot of protest. However, the country’s Minister of Petroleum and Energy, Terje Aasland the country “need[s] minerals to succeed in the green transition”.
“Currently, the resources are controlled by a few countries, which makes us vulnerable,” he says.
Investor stance
Six months ago, a group of 37 financial institutions, including Australian Ethical Investment, representing over €3.3 trillion ($5.4 trillion) of assets, expressed concern about the negotiations occurring at the ISA.
The Global Financial Institutions Statement to Governments on Deep Seabed Mining said DSM “must not go ahead until the environmental, social and economic risks are comprehensively understood, and alternatives to deep sea minerals have been explored fully”.
With the thinly-resourced and mandate-conflicted ISA seemingly out of its depth, more asset owners and managers need to get on board to deliver this message.
