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Abstract

In mid-2021, the Republic of Nauru invoked a treaty provision at the International Seabed Authority known as the “two-year rule”. This effectively imposed a deadline on the Council of the International Seabed Authority to complete the elaboration and adoption of regulations for the exploitation of seabed minerals in the international seabed Area by 9 July 2023. Come 10 July 2023, the Authority would be presented with a new legal situation, whereby applications for mining activities may be submitted despite the absence of applicable regulations. There remain many outstanding matters in the negotiations and, considering that the regulations for exploitation must be adopted by consensus at the Council, it would appear that there is still a long and winding road ahead before an agreement is reached among member states – if this is at all possible. In light of this, the Council clearly needs to discuss what would occur if an application for the approval of a plan of work for exploitation activities happens to be submitted in the absence of applicable regulations. While the open legal questions that arise from the invocation of the two-year rule and upon the expiration of the deadline have been analysed elsewhere, this discussion paper examines the new political reality that the Authority finds itself in following the expiry of the deadline on 9 July 2023. Building on previous work by the author, this discussion paper attempts to underscore what is at stake at the Authority and explores how member states should approach this situation.