By: Catherine Blanchard
PDF version: Catherine Blanchard_170921_NCLOS blog
Matter commented on: Nauru and the 2-year rule in deep-sea minerals exploitation
On 25 June 2021, the small Pacific island nation of Nauru put the international scientific, legal and political ocean community in a state of alert. It requested the International Seabed Authority (ISA), whose mandate is to regulate and control all mineral-related activities in the international seabed (also referred to as the Area) (United Nations Convention on the Law of the Sea (UNCLOS), art. 157(1); About the ISA), to complete the rules, regulations and procedures (RRPs) necessary to approve plans of work on deep seabed exploitation, which have been in development since 2011. In fact, Nauru claims that Nauru Ocean Resources Inc (NORI), an Nauruan entity sponsored by the Nauruan State, will soon be ready to submit plans of work for approval. This request was made under paragraph 15 of section 1 of the Annex to the Agreement relating to the implementation of Part XI (Part XI Agreement) of UNCLOS. Paragraph 15 stipulates that if a State party, which is ready to submit a plan of work for approval, requests the ISA to complete the elaboration of all relevant RRPs for exploitation, the ISA must do so within two years of the request. If the RRPs have not been elaborated within two years, the ISA shall provisionally approve the plan of work on the basis of whatever (draft) RRPs in place at the time. The rationale for the provision is seemingly to ensure the access to deep-sea resources and the development of the relevant exploitation rules in case of a deadlock at the Council, the executive organ of the ISA (Oxman 1994 at 692-693).
The triggering of this provision, referred to as “the 2-year rule”, has led to various reactions from all sides. This blog post engages in a legal analysis of the background, meaning and impact of the 2-year rule. As a legal analysis cannot be taken apart from the context in which it arises, this post first starts by highlighting the regulatory and political background against which the Nauruan request is made, before it turns to analyzing different components of the 2-year rule. The post further discusses the potential links between the 2-year rule and obligations of sponsoring States. It is hoped that this post will contribute to the emerging reflection on the legal impact of the 2-year rule, which is triggered for the first time by a State party.
2 What’s happening? The Mining Code and stakeholders’ positions
The ISA has, for the past 2 decades, been engaged in the development of the Mining Code, a set of RRPs covering the prospecting, exploration and exploitation of minerals in the deep seabed. From 2000 to 2012, the ISA first developed regulations on the prospecting and exploration of deep-sea minerals (Exploration regulations). On the basis of such regulations, exploration contracts were granted to contractors and States for an initial duration of 15 years, extendable thereafter by periods of up to five years each (Part XI Agreement, Annex, Section 1, para 9). Since 2001, 31 contractors and States have been granted such exploration contracts, NORI being one of them.
In 2011, the ISA started the work to develop a regulatory framework for exploitation activities. Based on preliminary discussions and consultations, the Legal and Technical Commission (LTC) of the ISA, its organ entrusted with the development of rules to regulate deep-sea activities, prepared draft exploitation regulations, which are yet to be adopted in their final form. The LTC has also been working on sets of standards and guidelines to assist in the understanding and implementation of the draft exploitation regulations. While the ISA had initially aimed to finalize the exploitation regulations – and consequently the Mining Code – by the end of 2020, the COVID-19 pandemic has considerably slowed down the process. The ISA has however recently published a plan of work for 2022-2023 and aims to adopt the regulatory framework on or before 9 July 2023 (para 13).
Essential work has been and is still being undertaken and seems to follow a steady pace despite the COVID “slowing down” of the past 18 months. These regulatory advancements are also recognized by Nauru itself, who salutes the work done. Why, then, trigger the 2-year rule, and why now? Nauru considers that significant technological progress has been achieved, and that investors and contractors need regulatory certainty in the face of the imminent possibility to start exploitation. The deep-sea mining industry, Nauru claims, could contribute to the transition towards renewable energy (deep-sea minerals are important for low-carbon technologies), and could open new doors for the economic and social landscape of developing States, especially in the context of a necessary economic revival following the COVID pandemic (Government of Nauru 2021). The Nauruan request also comes at the time of the forthcoming merger between DeepGreen, the Canadian parent company of NORI, and Sustainable Opportunities Acquisition Corp to become The Metals Company, which is planned to be listed in the New York Stock exchange before the end of 2021 (Alberts 2021). This could further explain the importance – and urgency – of creating regulatory certainty for all financial actors involved.
On the opposite side, some States and environmental NGOs have lamented the steps taken by Nauru. For example, the African Group, in a submission to the Council, said that “critical questions persist regarding the mechanism for sharing equitably the benefits derived from seabed mining” (at para 4; the mechanism is found in UNCLOS arts. 140 and 160(2)(f)(i)) and that “it may seem unlikely that a satisfactory agreement on this framework could be reached in two years” given the significant work that still lies ahead (at para 9). They stated that the request by Nauru is “likely to weaken rather than facilitate the development of an effective regime fully embodying the common heritage of humankind principle” (at para 5; the principle is found in UNCLOS arts. 136-137), which could impact equity and capacity-building. NGOs, for their part, argue that Nauru’s request has the potential of unduly rushing the adoption of exploitation regulations without adequate scientific knowledge of the environmental impact of deep seabed exploitation, while triggering a race to the bottom (Deep Sea Conservation Coalition 2021). This is why experts in marine science and policy have recently signed a statement calling for a pause to deep-sea mining “until sufficient and robust scientific information has been obtained to make informed decisions as to whether deep-sea mining can be authorized without significant damage to the marine environment and, if so, under what conditions”. This call for a pause has also been joined by the European Parliament (at para 183), as well as some private companies, and a moratorium on deep seabed mining has recently been supported by governments and civil society at the 2021 IUCN Congress.
The ISA, for its part, has not specifically reacted to the Nauruan announcement. Yet, the ISA, through comments made by its Secretary-General in an interview with the BBC earlier this year, stated that actual mining could in any case only start in 2026 at the earliest (Shukman 2021). In fact, the first step that could be reached by a State triggering the 2-year rule at the end of the allotted time is a submission of a plan of work by the applicant. The plan would then still need to be approved by the Council, and the applicant would still need to undertake different environmental assessments before a contract can be signed and mining activities can start (for the steps that need to be fulfilled before the commencement of mining activities, see draft exploitation regulations, regs. 7-27; Shabahat 2021). Yet, it would be surprising to see the ISA position itself firmly against the start of mining activities. The narrative of the Authority has indeed been shaped around the alignment of deep-sea mining activities with the Sustainable Development Goals (SDGs), and ensure an appropriate balance between the three pillars of sustainable development (economic, social and environmental), a balance that can also be seen in the preamble to Part XI Agreement.
3 Shedding light on the 2-year rule
The 2-year rule was included in the Annex to Part XI Agreement, an implementing agreement under UNCLOS which aims to amend the regime for deep seabed mining contained in Part XI and Annexes III-IV of UNCLOS. Consequently, the Agreement and Part XI are to be interpreted and applied together as a single instrument (Part XI Agreement, art. 2(1)). The 2-year rule can be found in paragraph 15 of section 1 of the Annex:
The Authority shall elaborate and adopt, in accordance with article 162, paragraph 2(o)(ii), of the Convention, rules, regulations and procedures based on the principles contained in sections 2, 5, 6, 7 and 8 of this Annex, as well as any additional rules, regulations and procedures necessary to facilitate the approval of plans of work for exploration or exploitation, in accordance with the following subparagraphs:
(a) The Council may undertake such elaboration any time it deems that all or any of such rules, regulations or procedures are required for the conduct of activities in the Area, or when it determines that commercial exploitation is imminent, or at the request of a State whose national intends to apply for approval of a plan of work for exploitation;
(b) If a request is made by a State referred to in subparagraph (a) the Council shall, in accordance with article 162, paragraph 2(o), of the Convention, complete the adoption of such rules, regulations and procedures within two years of the request;
(c) If the Council has not completed the elaboration of the rules, regulations and procedures relating to exploitation within the prescribed time and an application for approval of a plan of work for exploitation is pending, it shall none the less consider and provisionally approve such plan of work based on the provisions of the Convention and any rules, regulations and procedures that the Council may have adopted provisionally, or on the basis of the norms contained in the Convention and the terms and principles contained in this Annex as well as the principle of non-discrimination among contractors.
It is the first time that the rule is triggered by a State party, and it has never been judicially or authoritatively interpreted. This post therefore looks at different elements that form the content of the rule, and reflects on their potential meaning and impact, relying on basic rules of treaty interpretation codified in the Vienna Convention on the Law of Treaties.
3.1 The chapeau of paragraph 15
Paragraph 15 starts with a mandatory obligation for the Authority (“shall”) to elaborate and adopt the necessary RRPs to facilitate the approval of plans of work for exploitation. This obligation is to be interpreted in accordance with other principles, provisions and instruments listed in the chapeau:
A) Article 162(2)(o)(ii) UNCLOS
The mandate of the Council to adopt and provisionally apply the RRPs related to prospecting, exploration, and exploitation in the Area is found under this provision. A first interesting point to note is that this provision calls for priority to be given to the adoption of rules for the exploration and exploitation of polymetallic nodules. Exploration regulations for nodules were in fact adopted first, in 2000, compared to 2010 for polymetallic sulphides and 2012 for cobalt-rich crusts. The current text of the draft exploitation regulations, however, seems to cover all three types of minerals. A second point of interest resides in the presence of a “3-year rule” that would apply to the adoption of RRPs for resources other than polymetallic nodules. It could therefore be asked whether the 2-year rule contained in paragraph 15 only applies to polymetallic nodules.
B) Sections 2 and 5-8 of the Annex
Section 2 of the Annex to Part XI Agreement covers the Enterprise, created as the ISA’s own mining entity (UNCLOS, art. 170), although it has yet to start operating (Part XI Agreement, Annex, Section 2 para 2). Sections 5 and 7 address the transfer of technology and economic assistance respectively. Such references strongly link the interpretation of paragraph 15 to questions of development and capacity-building. These references more generally recall that the participation of developing States in deep-sea mining is central in the regime of the Area and must be promoted. Developing States like Nauru could, therefore, argue that triggering the 2-year rule in favor of developing States is warranted.
Sections 6 and 8 cover production policy and financial terms of contracts respectively. The principles discussed under these sections are mainly commerce- and trade-oriented, which highlight the sections’ core aim (over, e.g., environmental references). The mention, in section 8, of the importance of benefit-sharing could, however, support the necessity of having strong royalty and benefit-sharing provisions in the exploitation regulations, an aspect which should not be neglected despite the “count down” triggered by the 2-year rule.
3.2 Paragraph 15(a): “may undertake such elaboration”
The first sub-paragraph contains two elements. Firstly, the use of the word “may” indicates that an action is allowed, but that the person or entity concerned retains some discretion regarding making the decision itself or regarding some of the modalities of the decision. In the present case, although the Authority is, as discussed above, under an obligation to elaborate and adopt the relevant rules, the Council seems to have some discretion as to the scenarios under which the elaboration can be undertaken: 1) at any time the Council deems that all or any rules are required for the conduct of activities in the Area, or 2) when it determines that commercial exploitation is imminent, or 3) at the request of a State whose national intends to apply for approval of a plan of work for exploitation. The use of the word “or” between the different options represents different alternative scenarios that could lead to the elaboration of the relevant regulations. The request of a State party is therefore only one of the three ways through which the elaboration of exploitation regulations could be triggered, and nothing in the wording of sub-paragraph (a) seems to be giving priority to this scenario.
Secondly, the word “undertake” can be interpreted as taking responsibility for something and start doing it. As the elaboration of the exploitation regulation is already underway, starting the elaboration of the exploitation regulations has been triggered already, and has been so seemingly under scenarios 1 and/or 2 above. Undertaking, or starting, the elaboration of the relevant regulations through a request of a State party could therefore be seen as redundant in the present case, considering that the regulations are already being elaborated.
3.3 Paragraph 15(b): “shall complete the adoption of such rules […] within two years of the request”
This is the core of the 2-year rule: if a State makes a request, the Council shall complete the adoption of the rules within two years. “Shall” undoubtedly creates a binding obligation for the entity concerned, meaning that the Council would be under an obligation to adopt the requested exploitation regulations within two years. However, this must be balanced with the recognition in paragraph (c) that the Council may not in fact complete the adoption of RRPs within the allotted two years (more on this below).
One could argue that sub-paragraph (a) and (b) must be read together. There seems to be a general understanding that the possibility to trigger the elaboration of regulations through a request made by a State party was added at the request of the US and other developed States as a safeguard for those ready to engage in mining-related activities (Oxman 1994 at 692-693). This safeguard ensures the elaboration of regulations that might not have been undertaken otherwise (e.g. if a handful of States in the Council impede the processes. It could be asked whether this safeguard could also be interpreted as extending to a situation where the elaboration of the relevant RRPs takes too long, and if so, what long is too long). This is seemingly not the case here, as the development of regulations have been steadily underway, and the regulations could have been closer to adoption had the COVID-19 pandemic not halted the process (Lyons 2021).
Further, and to return to article 162(2)(o) UNCLOS discussed above, how can the 3-year rule for the exploration and exploitation of any resource other than polymetallic nodules be reconciled with the 2-year rule? Could this simply be a negotiating and/or drafting error between Part XI of UNCLOS (i.e. adopted in 1982) and the amendments brought by Part XI Agreement? Could this trigger practical difficulties, i.e. rules adopted within 2 years would also respect the 3-year rule, but what would happen to rules adopted between 2 and 3 years? Given that the current draft exploitation regulations do not distinguish between different types of resources, which provision applies? These could constitute reasonable grounds for a judicial contestation. The answer could also be as simple as applying article 2(1) of Part XI Agreement, which would give priority to the wording of Part XI Agreement.
3.4 Paragraph 15(c): “if the Council has not completed the elaboration of the rules […] within the prescribed time and an application for approval of a plan of work for exploitation is pending”
Sub-paragraph (c) deals with what happens if the conditions under (b) are not met. This sub-paragraph is, in the present author’s opinion, where the most practical inferences can be made from the 2-year rule. This sub-paragraph contains three main elements (also discussed in Willaert 2021):
A) The Council shall consider and provisionally approve such plan of work
To undergo the analysis of this element, one must take a step back and focus on the role that plans of work play within the regulatory framework for deep-sea mineral exploitation. Submitting a plan of work does not amount to undertaking mining activities: a plan of work is a tool for a contractor and/or State to demonstrate that its work complies with UNCLOS and other relevant rules, and it is on that basis that an exploitation contract is then negotiated between the contractor/State and the ISA. Only after a contract has been negotiated and signed can the exploitation activities start. This means that a plan of work could ultimately not be approved if it does not meet the conditions found under UNCLOS, Part XI Agreement or other RRPs (provisionally) adopted by the Council.
The word “shall” under sub-paragraph (c) indicates a mandatory obligation on the part of the Council. It seems straightforward to conclude that there is an obligation to consider the plan of work submitted. The interpretation of the obligation to provisionally approve, however, is more puzzling. What would a provisional approval mean in practice? Provisional to what? Provisionally approved for how long? Wouldn’t an automatic provisional approval of a plan of work defeat the purpose of having to submit a plan of work in the first place? Could provisional approval of the work plan perhaps be linked to the provisionally adopted RRPs, i.e. in case of the final adoption of these, it could be decided that the provisionally adopted work plan requires adjustment?
Despite such uncertainties, what seems to gather consensus for now among commentators is that invoking the 2-year rule would not necessarily mean that NORI’s plan of work would be approved, but that the process is somehow geared towards approval (Alberts 2021).
B) Based on any rules, regulations, and procedures that the Council may have adopted provisionally
According to this element of sub-paragraph (c), the provisional approval of the plan of work would be based on whatever RRPs are in force at the time the 2-year period elapses. If the RRPs are not adopted in their final form, this means that the provisional approval of plans of work would be made based on provisionally adopted RRPs.
Yet, what are provisionally adopted RRPs? In the context of articles 160(2)(f)(ii) and 162(2)(o)(ii) UNCLOS, this means adoption by the Council pending consideration and approval by the Assembly. Having to work with RRPs that have not received the final assent of the Assembly raises two questions. First, could this mean that different States/contractors who have submitted their plans of work at different times would potentially operate under different rules? For example, would an applicant that has submitted a plan of work under the draft regulations be bound by the draft regulations, while an applicant submitting a plan of work after the final regulations are adopted would be bound by the final regulations? In such a case, it would give a potential advantage to contractors invoking the 2-year rule. Second, since sub-paragraph (c) says that the plan of work would be approved based on rules adopted provisionally, does this mean that all plans of work provisionally adopted under the draft regulations would revert to being regulated by the final regulations once they are adopted? Or would there be a further phase where the plans of work provisionally adopted could be revised? This possibility for revision and adaptation has been examined in a previous study in the context of the exploration regulations (Jaeckel 2016), and it could be asked whether the suggestions made therein could be transposed to the exploitation regulations.
If revision is possible, are the contracts granted to the contractor to be amended? If so, what is the process for that, and what is the situation if the contractor refuses to agree to new terms? Paragraph 15 does not go as far as referring to contracts, but one could speculate on the impact of those questions if exploitation contracts were to be granted. Experience with exploration contracts shows that different contractors/States can find their contracts regulated by different sets of rules, depending on the “version” of the regulations in force at the time of negotiating the contract (i.e. the original version or the amended version). In fact, as the exploration regulations are included in exploration contracts, having a different set of rules apply to an existing contract (i.e. having an amended regulation apply to a contract negotiated and adopted under the “original” regulations) would mean a complete renegotiation of said contract (UNCLOS, Annex III, art. 19, discussed in Jaeckel 2016 at 2017). We could therefore foresee a similar scenario being replicated if initial exploitation contracts are adopted under draft regulations.
C) Or on the basis of the norms contained in the Convention and the terms and principles contained in this Annex
This last element of sub-paragraph (c) indicates that the provisional approval of the plan of work shall also be done based on other norms and principles contained in the Annex to Part XI Agreement or in UNCLOS itself, some of which raise particular interest.
First, sub-paragraph 5(f) of section 1 of the Annex to Part XI Agreement stipulates that the ISA shall concentrate on the “adoption of rules, regulations and procedures necessary for the conduct of activities in the Area as they progress […] such rules, regulations, and procedures shall take into account the terms of this Agreement, the prolonged delay in commercial deep seabed mining and the likely pace of activities in the Area” (emphasis added). The wording of this provision closely links the timely development of the regulations to the progression of deep seabed mining. One could therefore argue that if the start of exploitation is imminent, this provision supports the urgent need for the relevant RRPs. In the present author’s opinion, this provision further reinforces the duty of the ISA found under the chapeau of paragraph 15 to elaborate rules, but also strengthens the duty of the ISA to concentrate on the adoption of those rules.
Second, the reference to the timely adoption of rules related to the protection and preservation of the marine environment under paragraph 5(k) reiterates the importance given to marine environmental protection in exploitation activities. This is further supported by article 17(2)(f) of Annex III to UNCLOS, which stipulates that RRPs “shall be drawn up in order to secure effective protection of the marine environment from harmful effects directly resulting from activities in the Area”. These direct references to marine environmental protection in the framework of exploitation activities also need to be seen in light of the general environmental obligations of the ISA under article 145 UNCLOS.
4 What about the responsibilities and obligations of States?
As Nauru is acting as the sponsoring State of NORI, we can also look at obligations held by sponsoring States, an issue discussed by the International Tribunal for the Law of the Sea (ITLOS) in its 2011 Advisory Opinion on the Responsibilities and Obligations of States Sponsoring Activities in the Area (at paras 121-123 and 125-135).
The core obligation held by sponsoring States, in light of article 139 UNCLOS, is one of due diligence, i.e. to ensure that the activities in the Area are conform with all obligations found under Part XI. Difficult to define, however, is the content and scope of this obligation of due diligence. ITLOS held that the standard of due diligence should be more severe for riskier activities, exploitation seemingly falling under such category (Ibid at para 117). Relying on a previous decision of the International Court of Justice in the Pulp Mills case, ITLOS also reiterated that due diligence refers “not only to the adoption of appropriate rules and measures, but also to a certain level of vigilance in their enforcement and the exercise of administrative control applicable to public and private operators, such as the monitoring of activities undertaken by such operators” (Ibid at para 115).
The obligations of sponsoring States are not limited to ones of due diligence; issues potentially having impacts on the marine environment in the face of scientific uncertainty undoubtedly raise questions about the application of the precautionary approach. This approach is not per se included in UNCLOS, but has been recognized by ITLOS in the above mentioned advisory opinion as being one of the direct obligations incumbent on sponsoring States, as well as forming “an integral part of the general obligation of due diligence of sponsoring States” (Ibid at paras 122 and 131).
The obligation of due diligence as well as the precautionary approach are normally interpreted and applied in the context of imminent or ongoing activities. Nauru has itself indicated that it would not submit a plan of work, let alone engage in mining activities, if evidence were to show that mining would result in more environmental harm than benefits (Government of Nauru 2021). This supports an argument that it is improbable that Nauru would actually authorize an activity that is likely to seriously harm the marine environment. However, would Nauru be breaching its obligation of due diligence and/or the precautionary approach by triggering the 2-year rule, since it does so while knowing that there is currently not enough scientific information about the deep ocean and the broader ocean ecosystem, an information gap reiterated by the African Group in the above-mentioned submission (at para 10)?
At first glance, it would be difficult to find a sufficiently strong legal basis for such argument. The obligation of due diligence is not a self-standing obligation. It is a duty to be diligent when complying with a certain obligation, which, in our case, is oriented towards the actions and behaviors of contractors. There does not seem, however, to be a duty of due diligence for (sponsoring) States towards the work of the ISA. For its part, the precautionary approach, although having found a legally binding character through its inclusion in the draft exploitation regulations (regs. 2(e)(ii) and 44(a)), remains broad and difficult to apply in practice. A similar conclusion could be reached regarding the very broad and general obligation of cooperation in relation to the Area (UNCLOS, art. 138 and draft exploitation regulation 2(b)).
Yet, commentators have raised the possibility of relying on article 300 UNCLOS, which refers to the obligation of good faith and to refrain from an abuse of right (Deep Sea Conservation Coalition 2021, on file with author), to contest the Nauruan trigger of the 2-year rule. Could the potential “adoption rush” that the Nauruan request triggers amount to a violation of good faith regarding, e.g.
- the obligations to protect the marine environment found under Part XII UNCLOS, considering that a lack of scientific information about the impacts of mining on the deep-sea environment is well known;
- the promotion of international cooperation found under article 138 UNCLOS; or
- the need of establishing a strong and clear benefit-sharing regime for deep-sea minerals, e.g. under articles 140(2) and 160(2)(f) UNCLOS, and Annex Section 9 Paragraph 7(f) of Part XI Agreement?
Could an abuse of rights be raised regarding, e.g.
- the rights to those financial and other economic benefits ensured under the common heritage principle?
- the fact that the 2-year rule was triggered during the ongoing COVID pandemic, when the Council is unable to meet; or that it was triggered three days before consultation submissions were due on standards and guidelines?
As stated by ITLOS, however, article 300 cannot be invoked on its own and needs to be invoked together with a particular provision that has allegedly been violated (i.e. what obligation of UNCLOS has not been fulfilled in good faith or what right or freedom has been abused) (The M/V “Louisa” Case at paras 396-399). An argument based on article 300 UNCLOS has potential, but would need to be clearly linked with concrete obligations and rights in order to be considered. Further, as there is an explicit right to invoke the 2-year rule, it could consequently be more difficult to conclude that its trigger constitutes an abuse of rights.
Finally, the precautionary approach has been used as a (legal) basis by science and policy experts to call for a pause on deep seabed exploitation until more is known about the potential impacts of mining on deep-sea ecosystems, a pause often labelled as a moratorium. Such a moratorium on the exploitation of the deep seabed would not be a first, as States had agreed in 1969 to refrain from all activities of exploitation of the deep seabed pending the establishment of an international regime (UNGA Resolution 2574 (part D); Jaeckel 2017 at 77). Yet, at that time, possibilities of exploitation were not imminent; the current reality brings forward new elements that need to be balanced in light of a variety of interests. The use of moratoria with regards to other activities at sea has also shown the (political and diplomatic) challenges of such undertaking, as has been the case within the International Whaling Commission (Guggisberg 2019), and therefore must not be used lightly. The precautionary approach remains a broad concept, especially when looking at what it can lead to in practice, and, if its application is not properly designed in light of current realities and interests, can halt the conduct of any activity for an indefinite period of time. It could be asked whether a time-bound application of the precautionary approach similar to the one embodied in the Central Arctic Ocean Fisheries Agreement (CAOFA), where parties have agreed to refrain from engaging in commercial high seas fishing for an initial duration of 16 years (arts. 2, 3 and 13(1)), could be envisaged.
The 2-year rule is being triggered for the first time, raising interest among legal scholars and policy experts alike as to the practical impacts of the rule on the elaboration of exploitation regulations and the actual start of deep-sea mining activities. Given the complexity of the issues identified, further research is certainly needed before States and/or contractors can benefit from the legal certainty necessary for their activities.
For example, questions could be raised as to effective control and the potential liability of States other than the sponsoring State (i.e. other than Nauru) that could also be considered as involved in the process (e.g. Canada, being the State of incorporation of NORI’s parent company). Additionally, we could explore further the meaning of the term “imminent” and ask ourselves whether the threshold of imminence can indeed be considered as having been reached. There is also the need to look in more details at the compatibility of the 2-year rule with the environmental mandate of the ISA. Further, it would be interesting to delve deeper into the negotiation history of Part XI and Part XI Agreement to understand better the different interests and compromises that have motivated specific rules or phrasings/wordings.
Yet, is this discussion perhaps above all theoretical? After all, there is also the possibility that NORI will not submit a plan of work or apply for an exploitation contract with the ISA if, as submitted by the Nauruan government, environmental studies reveal that the risks will outweigh the benefits.
What makes the discussion very practical, however, is that the Nauruan announcement reminds us that the exploitation of the deep sea is not something of the distant future anymore. Against this backdrop, and at the onset of the UN Decade on Ocean Science, one must remember that science and policy must interact more than ever to adequately ensure that policy decisions and legal instruments are “future proof”, while being able to address current realities and balance relevant interests to conserve and sustainably use the deep seabed and its resources.
Acknowledgements: The author would like to thank Erik Molenaar, Duncan Currie, Matt Gianni, Solene Guggisberg, Lise Klunder and Sabine Gollner for their valuable comments on a previous version of this post.
This post may be cited as: Catherine Blanchard, “Nauru and Deep-Sea Minerals Exploitation: A Legal Exploration of the 2-Year Rule” (September 17, 2021), on-line: Catherine Blanchard_170921_NCLOS blog
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