The Mining Code of the ISA

The Mining Code comprises the rules and regulations for all mining activities on the deep seabed, from prospecting and exploration to the actual mining of minerals.

Drafting and adoption of the Mining Code resides with the ISA. Whereas the ISA has already adopted appropriate regulations for prospecting and exploration, the legal requirements for mining activities are currently still being discussed and negotiated.

UNCLOS requires the ISA to adopt a legal framework for the control and monitoring of mining activities on the deep seabed (UNCLOS Articles 139, 145 and 153). Sentence 1 of UNCLOS Article 145 calls for effective protection of the marine environment from harmful effects that may result from mining activities. The rules and regulations State Parties to the ISA have adopted are known as the Mining Code. In principle, the Mining Code is binding on all parties involved, i.e. on the State Parties to the ISA, on its bodies, on the sponsoring states (i.e. those that support a specific project) as well as on the project developers - on the latter at least by virtue of the national stipulations of the sponsoring state.

Mining activities include prospecting, exploration and exploitation of minerals.

With respect to prospecting and exploration, the ISA has issued corresponding regulations on three relevant types of minerals:

    The above-mentioned regulations are very similar in terms of content, structure and instruments. They differ only with respect to the spatial and geological characteristics that are relevant for the exploration of the mineral resources in question. In addition to the legally binding regulations, the ISA can also adopt recommendations. The "Recommendations for the Guidance of the Contractors for the Assessment of Possible Environmental Impacts Arising from Exploration for Marine Minerals in the Area " are of particular importance. For exploration projects, they set the standards for the assessment of environmental effects.

    Recommendations are not legally binding, but they nevertheless have a high steering effect. This is because project developers can generally assume that their actions are "lawful" if they comply with the recommendations. Generally, the recommendations are broadly worded and unspecific.

    Currently, environmental standards are being developed. They may be issued as „standards“, legally binding, or as guidelines, legally not binding. The Council is the organ to decide on the status of those documents. 

    However, a comparable set of regulations for exploitation projects is still missing.

    In summer 2017, the ISA Secretariat presented the "First Draft Exploitation Regulations". By the end of that year, a public consultation was open for comments. Germany participated in the consultation.

    Numerous comments were received on this first draft.

    In summer 2019, a revised draft of the Exploitation Regulations was submitted. Comments thereon were received by the end of 2019. Since the Council meeting in February 2020, deliberations on the rules and regulations have been suspended.

    For more information, please refer to the website of the ISA.

    According to UNCLOS Article 153 (3), mining projects have to be run in compliance with a written "plan of work", which needs to be approved by the ISA. The LTC reviews the plan of work and paves the way for the Council's decision. Thus, the ISA is not only acting as a legislator, but also as a licensing authority. Based on such a license, a contract is concluded between the ISA and the project developer. However, this only applies to projects carried out by the ISA's own company ("the Enterprise"), which has not yet been established. The foundation of the "Enterprise" is provided for in the International Law of the Sea. In particular, African states consider the operationalization of the Enterprise an important mechanism for implementing the CHM principle (Common Heritage of Mankind).

    For being admitted to licensing by the ISA, every mining project needs the sponsorship of a responsible state. The term "sponsoring state" is used for this purpose.

    The legal coverage of the sponsoring state's responsibility - also with regard to liability law - was dealt with in an advisory opinion of the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea in 2011. According to this opinion, it is the responsibility of the sponsoring state to ensure, by means of effective national regulations and control mechanisms, that the substantive requirements arising from UNCLOS and the ISA's rules and regulations are observed during the carrying out of the project. Thus, the sponsoring state alongside the ISA is responsible for enforcing the requirements while the project is carried out.

    Further information can be obtained from the ISA's Mining Code website.

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     Mining Code  UNCLOS  ISA