The International Seabed Authority (AIFM), which is not used to being in the spotlight, is today the subject of controversy around the mining of the deep seabed.
This institution, created in the wake of the United Nations Convention on the Law of the Sea of Montego Bay and the 1994 protocol, has the role of govern non-living marine resources and promote scientific research for the seabed of the area, i.e. all the seabed located in international waters.
Until then, the seabed in the high seas remained preserved from mining activities. But in the context of a energetic transition which could cause a increased demand for minerals, they increasingly whet extractive appetites, especially for cobalt, nickel, copper or manganese.
As the Council and Assembly of the AIFM have just been held, which we attended, let us return to the dynamics which guide the negotiations and to the possibilities of protection or exploitation of the seabed.
In Kingston, a three-part session
The AIFM met in July, a few weeks after the conclusion of an agreement under the sign of the Convention on the Law of the Sea: the treaty for the conservation and sustainable use of biodiversity on the high seas, which will be open for signatures from September.
International waters are therefore currently at the heart of intense diplomatic activity. In Kingston, where the meeting was held, some of the 168 member states of the convention were present, as well as many observers, environmental NGOs, representatives of the extractive industry and scientists intending to shed light on the negotiations.
To understand the context, let us emphasize that the AIFM is a world in itself. Initially, its Legal and Technical Commission (CJT) met for expert work. However, it is the subject of criticism from many delegations, voiced during the negotiations we observed, criticizing it for being too lacking in transparency, for concentrating its work around operational issues, and for not succeeding in proof of its ability to defend the marine environment.
In a second step, it is the executive body of the institution, its Council, which debated for two weeks, before leaving the Assembly of the Authority, its deliberative body, to discuss at the end of July.
Discussions under tension
Within the Council, antagonistic lines were opposed. Proponents of a rapid adoption of rules, regulations and procedures (RRP) for mining, wish on the one hand to accelerate the tempo. They want it either as an opportunity, to allow themselves the possibility of undertaking deep seabed mining projects in the future, or in order for the AIFM to draft this "Mining Code" in order to fulfill its mandate, since it is in fact responsible for drawing up these RRPs governing operations.
On the other, a coalition of countries is pushing for the adoption of a precautionary pause, a moratorium or even a ban : this is for example the case of Chile, France, Brazil or Vanuatu. They invoke Article 145 of the Convention on the Law of the Sea, relating to the effective protection of the marine environment.
From these negotiations, two decisions finally emerged which are based on a minimum consensus: they recall that no exploitation can be approved before the adoption of the relevant rules, and that the AIFM intends to try to continue to draw up these regulations and procedures.
The opposition nevertheless resurfaced during the Assembly, a moment awaited by the NGOs and the informal coalition of "Friends of the Ocean", in favor of more precautions. For five days, the dialogues however erred on the possibility of a real debate, China showing a strong reluctance with regard to this idea.
After heated exchanges, the two decisions were finally separated from the agenda on the last day so that the discussions could be held in 2024.
A Pacific island attacking the seabed
The tension that reigned during this session goes back to the principles of creation of the AIFM, based on a double objective: the authority was both responsible for organizing the exploitation of the seabed, while having the obligation to protect the marine environment.
Two dynamics have reinforced this contradiction. The first is from Nauru, Pacific island that triggered a device aimed at initiating the exploitation of the deep seabed in the area – the “two-year rule”, established by the 1994 Agreement linked to the Convention on the Law of the Sea. This procedure initiated in June 2021 implies that the Council had to adopt before July 2023 rules to regulate mining – which it has not done.
The rule provides, in this case, the possibility for AIFM contractors to submit temporary operating plans. Nauru then has a means of pressure for the adoption of this "Mining Code" and does not intend to wait indefinitely to assert this right.
A new place for biodiversity
The second dynamic, in the opposite direction, comes from the adoption in June 2023 by the AIFM of an agreement on biodiversity beyond national jurisdictions (BBNJ). It comes six months after a decision by the COP of the Convention on Biological Diversity (CBD) which asked that the institution ensure that damage to marine fauna is avoided.
While the ocean is in the throes of rapid and worrying transformations linked to human activities, the context of the negotiations at the AIFM, marked by an environmentalization of international policies, where the protection of living environments is becoming a central issue in the discussions, has changed dramatically in recent years.
These two dynamics therefore reinforce the initial contradictions contained in the mandate of the AIFM and partly explain the more tense than usual progress of the exchanges in this previously civilized forum.
The growing weight of science
The irruption of science in the debates is always greater, and the uncertainties and misunderstandings increase this tension. Indeed, a scientific consensus now establishes that knowledge about the environments potentially affected by exploitation is insufficient, given its irreversible consequences.
Because through scientific work, it is the material, economic and physical reality of climate change and the sixth mass extinction of species that invites itself into the discussions, and raises the question of the habitability of the planet.
But these debates also raise questions about the risk, in many international arenas, of the weakening of the multilateral framework: the AIFM is a unique government of a space common to humanity. Without regulation, the operating dynamics would be even less controllable, even if the ideal were to avoid them completely.
Sustainable development, an outdated concept?
A difficulty remains: the Convention on the Law of the Sea was born at a time when the paradigm of sustainable development was being formulated and disseminated, which presupposed the possibility of reconciling economic growth, social progress and environmental protection. The current aggravation of the dynamics of destruction of living environments invites us to reconsider this paradigm.
In fact, during this week's discussions at the AIFM, members of local and indigenous Pacific communities raised another voice. They defend the specific link that unites them to the ocean, their environment, and want future generations to maintain it – a discourse that is in line with scientific conclusions although its foundations are very different.
On the side of the supporters of mining, who plan the projects from projections of the increase in demand for minerals, such a prospect is considered absurd. Read together, these two antagonistic positions reflect the question that concerns the AIFM, like our societies: that of the modes of production and consumption in a global environment in tension.
Modes of production under debate
The renewal of these modes of production and consumption could indeed, as industrialists believe, lead to the need for mining in the deep seabed.
But their transformation towards an economy of the commons moving away from the principle of accumulation would call into question this future necessity.
At the AIFM, all work must be based on the principle of the common heritage of mankind, according to article 136 of the Convention on the Law of the Sea. The urgency caused by the deterioration of the conditions of existence on Earth weighs on the discussions.
This institution is not the only one to be confronted with it and will not take care of the entire problem. But it could contribute to a better consideration of the question of the preservation of our living environments.