Subsidiary but central: the role of standards and guidelines in regulating deep seabed mining

The UN Convention on the Law of the Sea (UNCLOS) mandates the International Seabed Authority (ISA) to develop measures, including “rules, regulations and procedures” (RRPs), to govern deep seabed mining in areas beyond national jurisdiction. To this end, member states of the ISA have focused much recent work and time on developing and negotiating the Exploitation Regulations. A lesser discussed aspect of the regulatory regime are the Standards and Guidelines (“S& G ”). S&G are subsidiary instruments required to operationalize and elaborate on the Exploitation Regulations. S&G will be essential regulatory tools within the system of RRPs that the ISA needs to establish to regulate deep seabed mining. There has been recent focus on the state of readiness of the ISA to regulate the emerging deep seabed mining industry. While this debate considers the status of the draft Exploitation Regulations, the status of the S&G is little discussed though their elaboration has barely begun. Since S&G are to be read in conjunction with the Regulations—which are still under development, the exact number and topics of the S&G remain in flux. This leads to uncertainty around the scope of the work the ISA needs to finalize before mining can be permitted. This paper examines how many S&G are currently needed within the regulatory framework, what kind of substantive guidance and obligations could be dependent on them, and provides a set of recommendations to progress this work further.