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.