Nauru requests the International Seabed Authority Council to adopt rules and regulations within two years
FAQs on two year notice
Q1: What is the 2 Year Notice?
It is a legal procedure included in
the Agreement relating to the Implementation of Part XI of the UN
Convention on the Law of the Sea (known as the "1994 Agreement"
-Section 1, Paragraph 15), that allows a State Party and Member of
the International Seabed Authority (ISA) who intends to apply for
an exploitation contract to request that the legislative organ of
ISA (the "Council") adopt rules and regulations for the
exploitation of seabed minerals of the Area within two years of
this notification.
Q2: What does the 2 Year notice involve?
Nauru has submittted a letter to
the President of the ISA's Council requesting that it completes its
work in relation to the negotiations and adoption of the draft
exploration regulations.
Q3: Why has Nauru given the 2 Year Notice?
Nauru has proudly taken a leading
role in developing the international legal framework governing
seafloor nodules in the international seabed area (the
Area).
As the first developing country to
sponsor an application for an exploration contract in the Area,
Nauru helped realise the vision of the United Nations Convention
for the Law of the Sea (UNCLOS) that this new industry be
accessible and available to developing States.
Given that Nauru Ocean Resources
Inc (NORI), a Nauruan entity sponsored by Nauru, intends to apply
for approval of a plan of work for exploitation, Nauru is following
the appropriate procedure as detailed in the 1994 Agreement.
The draft exploitation regulations
for minerals of the Area have been under development for more than
seven years and involved a series of transparent, inclusive
discussions by the international community, facilitated and led
by ISA. Nauru considers that the process is nearly
complete and stands ready to continue working diligently with ISA
and all its Members and other stakeholders to finalise, negotiate
and adopt a world class regulatory regime that allows for the
responsible collection of seafloor nodules while ensuring the
protection of the environment.
At the same time, Nauru considers
that there is urgency of concluding this work in order to provide
the legal certainty required for this industry to move forward.
Q4: Why is there an urgency?
NORI has significantly advanced its
project since obtaining an exploration contract 10 years ago.
Significant effort and capital has been committed to advance
the project using leading scientists and engineers with the
objective of submitting an application for an approval of a plan of
work for exploitation to ISA. It is necessary to finalise the draft
exploitation regulations so that there is regulatory certainty.
Nauru believes that we have a duty
to the international community to carry out this request to bring
this certainty for the benefit of all stakeholders, and to ensure
that polymetallic nodules are considered as part of the solution
for the global transition from fossil fuels and towards renewable
energy.
As a Pacific Small Island
Developing State, Nauru stands to lose the most from climate
change. Achieving the emissions reductions necessary to avoid its
worst impacts cannot happen without metals. The responsible
development of this new industry offers a rare opportunity for our
social and economic development, while also supplying the world
with a lower-impact source of metals for the low-carbon
technologies needed to combat climate change.
Q5: Is this rushing the
adoption of the Exploitation Code?
No. UNCLOS was signed in 1982, and
is perhaps the most comprehensive international convention passed
in world history. Since 2014, the ISA has been developing the draft
exploitation regulations for the seabed minerals of the Area, with
extensive engagement and input from all stakeholders over the many
years.
With the process nearly complete,
the time has now come to finalise the rules for the benefit of all
stakeholders and the international community, and to ensure that
seafloor nodules are considered as part of the solution for the
global transition away from fossil fuels and towards renewable
energy, and the creation of a circular economy.
The draft exploitation regulations
for minerals of the Area have been under development for more than
seven years and involved a series of transparent, inclusive
discussions by the international community facilitated and led by
the ISA. Nauru considers that the process is nearly complete
and stands ready to continue working diligently with ISA and all
its Members and other stakeholders to finalize, negotiate and adopt
a world class regulatory regime that allows for the responsible
collection of seafloor nodules while ensuring the protection of the
environment.
The development of these draft
exploitation regulations is a good illustration of the attention
that has been given for many years by the international community
to design a regulatory regime that provides for strong measures and
mechanisms to ensure the protection of the environment and which,
for the first time in history, will be put in place prior to the
commencement of a new industry.
Q6: When does the 2 Year
period start?
The two-year period starts from 30 June 2021.
Q7: When does NORI plan to
submit its application for an Exploitation Contract?
NORI is undertaking multi-year
comprehensive environmental baseline studies involving leading deep
sea scientists and research institutions. At the completion of
those studies, it is expected that NORI will be in a position
to submit an application for approval of a plan of work for
exploitation to ISA.
Q8: What role did NORI play
in your decision to utilize the 2 Year Notice? Did they ask
Nauru to do this?
The decision to utilise the
two-year notice is a decision made by the Government of Nauru.
The Government has a great relationship with NORI, and are
aware of NORI's timeline and the progress they are making. It
should be emphasised and reiterated that the decision to utilise
the two-year notice was Nauru's, and we look forward to working
with the other members and stakeholders to finalise and adopt the
draft exploitation regulations.
Q9: What happens if the ISA
doesn't have the Exploitation Code adopted in two
years?
We are confident that the draft
exploitation regulations will be adopted within two years.
However, if for some unlikely reason it is not, the 1994 Agreement
expressly deals with this potential scenario by allowing a work
plan to be considered based on the provisions of UNCLOS and the
1994 Agreement as well as any rules, regulations and
procedures that the Council may have adopted provisionally, or on
the basis of the norms contained in UNCLOS.
Q10: There are some
stakeholders who do not support using the 2 Year
Notice.
We believe that regulatory
certainty is important, and that such regulatory certainty will
benefitallstakeholders. This clause was purposefully added to
UNCLOS and is a legitimate tool available to every State Party and
Member of ISA.
Nauru is comfortable with being a
leader on these issues. This is very similar to 2009 when
Nauru took the initiative and requested that the ISA seek an
advisory opinion from the International Tribunal for the Law of the
Sea (ITLOS) on the responsibilities of Sponsoring States. At the
time, some stakeholders had reservations because this marked the
first time that such a request for an advisory opinion had been
made. Since submitting the request, there has been overwhelming
consensus that the Advisory Opinion was extremely beneficial to the
development of international law in this area.
Q11: How will Nauru benefit
from seafloor mineral production in the Area?
As a small Pacific Island
Developing State, Nauru now has the ability to participate and
benefit from an industry that is critical to our livelihood. We do
not have land-based resources and have limited economic
opportunities which, in turn, makes mitigation of, and adaptation
to, the worst impacts of climate change increasingly challenging.
The provisions contained within UNCLOS specifically provide for
developing States such as Nauru to participate in this new
industry.
As a Sponsoring State, Nauru
currently receives support for training and capacity development,
community and social programs and, in the future, we will receive a
nodule recovery fee.
Since becoming the first developing
country to sponsor an application for an exploration contract in
the Reserved Area, Nauru has seen many other developing countries
follow its example, as they too see the benefits of being a
Sponsoring State. We are excited to be part of a project that will
benefit Nauru, other developing countries and the international
community.
Q12: How does Nauru respond
to those who say we don't know enough about the deep sea and are
calling for a moratorium?
No commercial collection of
seafloor nodules can or will take place until rigorous, multi-year
environmental impact studies are conducted, vetted, reviewed and
evaluated through the global regulatory mechanism established by
UNCLOS and administered by ISA. If this research shows that the
risks outweigh the benefits, the global community, through ISA, can
decide that the project should not go ahead. NORI has clearly
stated that if the research shows that producing metals from
seafloor nodules will do more planetary harm than good, they will
not apply for an exploitation contract with ISA.
Those calling for a moratorium risk
undermining the very research that they are calling for while the
climate crisis continues.
Q13: What are biggest
remaining hurdles to get the exploitation code
completed?
We believe that the draft
exploitation regulations can be completed within the next two
years, as a significant amount of progress has been made over the
last seven years. The major aspects of the draft exploitation
regulations have all been advanced significantly. The exploitation
regulations have undergone six rounds of stakeholder comment and
review and are with the Council for final negotiation.
Ten Standards and guidelines were
identified as needing to be completed with the adoption of the
exploitation regulations. Three have undergone stakeholder
comment and review, and the comment period for the remaining seven
closes on July 3. This will allow the ten standards and guidelines
to be reviewed at the next Council meeting.
Significant work has occurred on
the financial regime and we are expecting a report from the working
group prior to the next Council meeting reflecting the recent
reports that were commissioned.
Q14: What about
COVID-19?
The draft exploitation regulations
were in its final stages and it was anticipated that they would be
adopted prior to Covid-19. Since Covid-19, the world has seen a
step change in communications technology, making it even easier now
for ISA Members and stakeholders to meet remotely and more
frequently. As such, we believe that there is an even greater
opportunity now for all stakeholders and ISA Members to work
together to finalise the draft exploitation regulations.