Test mining in the Area: Legal, regulatory, environmental governance and scientific perspectives

The International Seabed Authority, ISA, acts on behalf of all humanity and controls the area and its mineral deposits, the common heritage of humankind. This includes the obligation to effectively protect the marine environment from the potentially harmful effects of mineral exploration and extraction activities. This means that the measures and rules adopted by the ISA must prevent the affected biota and ecosystems from being irreversibly damaged by the activities of the contractors. This can best be demonstrated by in situ testing of the technology used for extraction. In the regulations currently in place or negotiated, there is no requirement to carry out equipment, system and operational testing prior to entering into a mining contract. Thus, while it is recognised that contractors can carry out tests of all kinds, there is no mandatory requirement for tests to be carried out. This allows contractors to theoretically move from exploration to commercial production without having to practically demonstrate to the ISA that no unacceptable environmental harm will occur. Prediction models also cannot be validated and verified without in situ testing. Furthermore, tests would: (a) provide contractors with the necessary data and knowledge for meaningful environmental assessments (and to subsequently prepare all the documents necessary to accompany the commercial mining application); (b) b) provide the ISA, as regulator, with the data and knowledge necessary to set its environmental objectives, standards and damage limits in a manner that effectively protects the marine environment; and (c) enable the ISA, as regulator, to adequately assess the technical capacity of the contractor/applicant to manage and minimise the adverse impacts of its mining activities. This report examines the issue of test mining in the area from legal, regulatory, environmental and scientific perspectives.