The International Seabed Authority’s war with itself
Over the past three decades, the organization affiliated with the United Nations called the International SEA Feld Authority, or Isa, has worked in a relative obscurity on the negotiations of regulations which govern a business domain which remains purely speculative: deep exploitation or the harvest of metal rocks called polymetallic nodules off oceanic soil. The start of the exploitation of maritime funds on a commercial scale A, as the Australian scholarship holder of international law Douglas Guilfoyle says, “at 10 years for 60 years”.
In April, the Trump administration announced its intention to open the authorization process to issue the operating licenses of maritime funds itself – both in American waters and, for the ISA, the high seas. In May, the Ocean Energy Management Bureau started the process to rent parts of the seabed from the American Samoa to a company called impossible metals for exploration. And more recently, in early August, the State Department announced that the United States was in talks with the Cook Islands, a Member State of the ISA, “to support the research necessary to clarify the exploration of the seabed and responsible development in the exclusive economic zone of the Cook Islands” – apart from the ISA jurisdiction.
The American effort to launch mining in international waters – recognized practically worldwide as the ISA jurisdiction – proceeds to Apace. A proposal from the National Oceanic and Atmospheric Administration to “rationalize” the process so that companies apply for extraction permits in international waters by allowing them to skip the “exploration” phase – the standard in mining procedure worldwide, and an opportunity for environmental revision – and directly proceed to “exploitation” reaches the end of its period of public comments on September 5.
A multinational company called Metals, which continued ISA approval to mine in the Pacific Ocean for more than a decade, has rather turned to the United States for an extraction permit, due to what the company perceives as the slow march of ISA. Thus, at the end of July, when diplomats from around the world gathered in Kingston, Jamaica, for the ISA annual assembly, the question that poses the procedure was how the ISA would respond to this threat to its authority.
Most of the delegates and the heterogeneous assortment of official observers, journalists and researchers stayed in a group of hotels in New Kingston, the city’s business district. Every morning for the one -week conference, they were transported in shuttles by police escort to the permanent headquarters of Isa to Jamaica Conference Center, in the heart of the port of Kingston.
This year was the 30th ISA assembly, and attendance was unusually high. For the second time in its history, the Assembly had the representation of enough countries to provide the quorum which would have enabled it to take a vote. However, no voting of this type was on the table. The high attendance was mainly due to the imminent spectrum of what diplomats continued to call “unilateral action” – euphemism with tact for the maneuvers of the United States. The ISA was created by the Landmark Convention 1982 Law of the Sea, or UNCLOS, which declared the seabed beyond the national jurisdictions, and its mineral resources, “the common heritage of humanity”. The United States has never ratified the law of the Convention on the Sea and attended the ISA only as an observer – a historical fact which prepared the ground for the current fight.
During the first two days of the Assembly, it became clear according to the speeches that there were two major disagreements between the assembled nations.
The first concerned the question of whether the American threat obliges Isa to act urgently to finalize its own regulations on deep mining. Diplomats from countries like China, Singapore, Japan and Russia have expressed their support for this position. On the other hand, the prudence argument attracted the support of the 38 countries which support a complete moratorium on the exploitation of the sea in depth until better scientific evidence on the ecological consequences are available.
The other animation disagreement concerned the main objectives of the session organized by numerous environmental NGOs and pro-moratorium states: to open discussions on the institute of a new “general policy” on the protection of the marine environment, and to initiate a “periodic examination” of ISA activities. (Such journals are already mandated to occur every five years by UNCLOS, but only one has ever been carried out).
The group led by China considered these two objectives as distractions of the primary and urgent task of the ISA – reducing the regulations. The diplomats of this group argued that the general environmental policy would be redundant, because these protections would be ideally written in these regulations. The donors of a general policy replied that it would apply to all the administrative bodies of the ISA – the secretariat, the assembly, the council and a sleeping entity called the company, which is intended to one day carry its own in -depth exploitation for the nations of the world, while the environmental provisions in the proposed regulations would only apply to entrepreneurs.
On Wednesday, the Assembly celebrated its 30th anniversary with a performance of a local reggae merger group of local students from local high school students. The rhythm section played from the press gallery overlooking the rows of national delegates, while a group of synchronized singers and dancers took the stage below the podium, where Leticia Carvalho, the ISA secretary general, was observed scintillating his shoulders with infectious beat. (“I am Brazilian,” she explained to revelers during the evening reception.)
Taking a day off from official negotiations has enabled diplomats to attend private meetings held in small building rooms of the building on the objectives of the various factions. It was clear at the end of the day that the Chinese delegation and its allies would not move, leaving the pro-moratorium there is little chance of a symbolic victory.
Thursday, the underlying current of “unilateral action” finally returned to the surface, while it was time for the observer delegations-and the first was the United States. Greg O’Brien, an employee well appreciated by the State Department who represented the United States during ISA meetings under several presidential administrations, offered a concise but opaque declaration. Instead of responding directly to the criticisms of other countries, he said that he had submitted a written statement for the ISA secretariat to publish on his website. He stressed, he said, “the position of the United States on the legal nature of the law of the provisions of the seabed of the Act of the Sea.” Diplomats frantically verified their laptops and phones to read the Declaration, which was quickly broadcast in the cat of the WhatsApp of journalists.
This declaration maintains that UNCLOS is “customary international law” and therefore applies even to countries (such as the United States) which have not ratified it – with the exception of the provisions relating to the extraction of seabed. The extraction of minerals from the seabed, supports the United States, is part of the so-called “high seas freedom” that customary international law recognizes that all nations have the law, in the same class as navigation or installation of submarine cables.
It took diplomats for a while to read the declaration and prepare an answer, but near the day’s procedure, the Chinese delegate raised his sign to speak – and surprised the room with a fiery refutation.
She pointed out that the United States has long benefited from the provisions of UNCLOS that it claims to be international customary law – in particular, the extension of the legally recognized continental plateau treaty, which has granted exclusive American access to areas rich in oil and gas.
“This deserves to emphasize that the United States is not a part of the Convention, but it insists on the use of a limit of 200 miles as under CNUDLOS,” she said, stopping after each Mandarin sentence to listen to the English translation in his helmet and correct it if necessary. The statement that the United States is only exempt from the Treaty section which grants the exclusive ISA jurisdiction on the exploitation of maritime funds in international waters “shows once again the naked American practice of standard doubles to use everything that suits it and to abandon anything.”
Despite the world opposition, Trump just accelerated the exploitation of the deep assessment
Following the Chinese speech, the Brazil delegate – a pro -moving state that had been on the other side of the arguments of the week with China – asked to speak. The president of the Assembly told him that only ten minutes left. He promised to be brief and he was.
“I would like to take advantage of this opportunity to provide the support of my delegation to the declaration which has just made by the distinguished representative of the People’s Republic of China,” he said. “Although I have not yet examined the text, I would like to congratulate it on the excellent analysis, that I am sure of the views of this assembly.”
Just before the president could start the session in his end, he recognized another last minute request to speak to the French delegate, Olivier Guyonvarch.
While Guyonvarch was starting to speak, laughter ripples in the room. In a rare moment of spontaneity and humor in the Diplomatic Staid procedure, he began his speech in Mandarin. No one understood. The relevant translators had clearly left or were not prepared.
From the podium, a member of the secretariat, confused, tried to clarify things. “There may have been a little problem in terms of interpretation, because there are a lot of member states which indicated that they had no interpretation of your intervention, so maybe if you could bring it back, probably in English …”, she suggested.
In English, Guyonvarch said: “I am sorry to use another official language than my own language. I just wanted to say that, like the Brazilian delegation, we would like to support the declaration that has just been made by China.”
To believe in the importance of maintaining the mandate of the ISA, the unusually theatrical moment gave a certain optimism – a common enemy was in sight.
However, when the assembly postponed late the following evening, the diplomats more or less left all the important questions still unanswered. To the disappointment of the anti-Mine coalition, neither a general environmental policy nor the periodic examination was launched. And to the frustration of the two in favor of mining and those who consider regulations as the best chances of the ISA to protect its authority – and the global ocean governance regime that it anchors – it was clear that the regulations will not be written for a long time.
If there was a concrete achievement that the ISA assembly managed in its deliberations this year, it was the decision (adopted by consensus) to appoint on November 1 as International Seabed Day.
Fixed: an earlier version of this article destroyed the scope of the 1982 sea law convention, or UNCLOS, which declared the seabed beyond the national courts, not the oceans.
