Deep seabed mining rules hinge on 58 unseen standards

Deep beneath the waves of the Pacific, a regulatory drama is unfolding that could determine whether the world’s first commercial deep seabed mining ever gets the green light. A new analysis published in Frontiers in Ocean Sustainability reveals that the International Seabed Authority (ISA), the UN-mandated body responsible for governing mineral activities in the international seabed area, is missing far more than the headline Exploitation Regulations that have dominated negotiations for years. Buried in the fine print of the draft regulatory regime lies a vast constellation of subsidiary instruments, known as Standards and Guidelines, that are essential to making the mining code operational. The authors, Anindita Chakraborty and Hannah Lily of The Pew Charitable Trusts, undertook a systematic review of the June 2026 draft Exploitation Regulations and identified a minimum of 58 Standards and Guidelines that the regulations assume will exist. Of these, at least 57 specifically require legally binding Standards. Their elaboration has barely begun.

The ISA was established under the UN Convention on the Law of the Sea (UNCLOS) to regulate mineral-related activities in the Area, the seabed beyond national jurisdiction that the Convention declares to be the common heritage of humankind. The Authority carries a dual mandate: ensuring that exploration and exploitation of seabed minerals are conducted for the benefit of all, which includes equitable access and benefit sharing, while simultaneously ensuring effective protection of the marine environment from harmful effects. Central to fulfilling this mandate is the development of a comprehensive legal framework. The ISA’s member states have poured much of their recent negotiating energy into the Exploitation Regulations, the primary instrument required before the first mining operations can be permitted. But the regulations alone will not suffice. The ISA’s executive organ, the Council comprising 36 elected member states, has decided that the regulations need accompaniment by legally binding Standards and recommendatory Guidelines to give technical and procedural detail to the framework.

The distinction between the two types of subsidiary instruments matters enormously. According to the draft negotiating text, Standards will be recommended to the Council for adoption by the Legal and Technical Commission after public consultation, will be regularly reviewed and updated, and crucially will be legally binding. Compliance with Standards is designed to be a fundamental term of every exploitation contract, meaning that non-compliance can trigger penalties under UNCLOS. Standards are also aimed toward an outcomes-based approach where feasible, focused on desired results rather than prescribing specific processes, and are intended to describe how the Authority and contractors shall implement the regulations. Guidelines, by contrast, are administrative in nature and non-binding. They can be issued by the Council’s subsidiary organ, the Legal and Technical Commission, or by the ISA Secretariat. Some member states have proposed that contractors should be expected to observe all Guidelines to the furthest extent possible, and another proposal would require exploitation contractors to explain any divergences from the Guidelines, serving both to alert the ISA to possible performance issues and to flag when Guidelines become out of date.

The authors argue that Standards and Guidelines will assist the implementation of the regulations in three distinct ways. First, they provide additional detail on aspects covered within the regulations that would be too lengthy or prescriptive to include in the regulations themselves. Second, they offer an avenue to add new areas not covered by the regulations but where regulatory clarity is nonetheless needed. Third, and most critically, they afford a streamlined process and flexibility for amendments over time as new learning and information comes to light, which would be overly burdensome to rectify by revising the regulations themselves. This interdependence means the regulations and the subsidiary instruments are inherently intertwined. Agreement by the Council on the Standards and Guidelines must therefore occur before or in parallel with the regulations to assure states that the framework sufficiently addresses all necessary elements. The ISA’s own repeated mantra that nothing is agreed until everything is agreed underscores this point, though the Council has never crystallized the extent to which it applies to the technical elaboration subsidiary to the regulations.

The history of Standards and Guidelines development at the ISA reveals a pattern of ad hoc progress and procedural uncertainty. In March 2019, the Legal and Technical Commission presented the Council with draft Exploitation Regulations that included references to Standards and Guidelines, and the Council directed the Commission to examine the issue. A multi-stakeholder workshop convened in Pretoria, South Africa in May 2019 formed the basis and framework for much of the discussion that continues today. The workshop outcomes included proposals that ISA Standards are part of the rules, regulations and procedures and are binding on member states, contractors and the Authority alike; that Guidelines identify a recommended path for implementation; and that a three-phased approach to development be adopted, with 16 specific instruments identified under Phase 1. Drafts of 10 Phase 1 instruments were prepared by the Commission in 2020 and 2021 and released for consultation, drawing 360 submissions from 32 countries, one regional group, eight observers, 13 contractors and 11 other stakeholder entities. Yet when a revised set was released for the ISA’s 27th session in 2022, member state interventions recorded disappointment at the lack of substantive revisions made in response to the overwhelming consultation feedback. The Council subsequently decided to pause work on the instruments until the regulations became more stabilized.

Notably, the Council has never formally adopted any decision regarding the scope or legal standing of Standards and Guidelines. The 2019 Legal and Technical Commission report summarizing the Pretoria workshop outcomes has often been cited as evidence of the Council’s intent and used in lieu of a formal decision. But the notional procedure and underpinning principles for the instruments in fact evolved from a combination of Secretariat papers, the Pretoria workshop, and the Commission’s report to the Council. Delegates also raised concerns about the drafting process itself, noting that in some instances the Commission utilized external consultants for the preparation of zero drafts, and in other instances drafts were prepared by committees of external volunteers, with little information provided about the selection process or identity of those persons. The Pretoria workshop had pre-empted this concern, recommending that the Authority develop a written procedure for instrument development incorporating guiding principles of inclusiveness, transparency, effectiveness, relevance and continuous improvement. No such procedure was subsequently developed. The result is that the ISA now possesses 10 outdated draft documents, noted by the Council as unsatisfactory in substance, produced between 2020 and 2022, never finalized, and now substantially out of step with the latest iteration of the regulations.

The authors’ own review of the June 2026 draft text identified 58 Standards and Guidelines across five functional categories: 14 on environmental matters, nine on financial terms of the contract, nine on institutional matters, 16 on operational aspects and 10 on procedural issues. The distribution demonstrates that subsidiary instruments will be required across the entire spectrum of the regulatory regime. The environmental category alone encompasses instruments on the development and application of environmental management systems, the establishment of baseline environmental data, environmental impact assessments, the preparation of environmental impact statements, environmental threshold values and indicators, the interpretation of serious harm, mining discharges, closure plans and post-closure monitoring, and the design criteria for impact reference zones and preservation reference zones. The financial category includes instruments on the form and calculation of an environmental performance guarantee, insurance, the determination of royalty payments, equalization measures and the review of the system of payments. The institutional category covers instruments on the environmental compensation fund, audit by the Authority, the beneficial ownership registry, the handling of data and confidential information, inspectors and their appointments and powers, and the compliance committee.

Five examples from the analysis illustrate just how much substantive regulatory weight is being deferred to these instruments. The Standard on the development and implementation of environmental threshold values and indicators is perhaps the most consequential. The draft regulations refer to different gradations of decisions for varied thresholds of environmental harm, including terms such as serious harm, harmful effects and effective protection, but the Council has yet to discuss in any detail the definition or criteria for each of these terms or to tie them to specific and measurable thresholds. Since 2022, the Council has tasked the Legal and Technical Commission with establishing such thresholds through expert working groups composed of scientific specialists examining different mining impacts, including toxicity, noise and light pollution, turbidity and sediment resettlement. Preliminary outputs from these groups underscore two critical impediments: a persistent lack of empirical data regarding baseline conditions and resilience, which precludes informed quantification of thresholds, and the absence of clear policy guidance from the ISA that would give technical experts a normative framework for how thresholds should be defined, applied or interpreted. The Council has also clarified that additional topics and working groups will be needed, for example on habitat removal. Progress on these thresholds, which sit at the crux of the ISA’s regime, could be described as nascent but impeded.

The Standard on insurance is another decisive element deferred to the subsidiary framework. Several delegations have suggested that the details of insurance coverage should be set out in a Standard, and many have emphasized the need for detailed analysis of the liability regime. Open questions remain as to what type of insurance would be required, whether self-insurance would be permitted, what it would cover, from general liability and environmental impairment liability to protection and indemnity for vessels and machinery, employer’s liability, business interruption and emergency response, and what liability caps may be permitted. The ISA Secretariat advertised for a consultant to draft a Standard on insurance obligations in 2022, but there has been no update since. The insurance requirements the ISA chooses may not be currently available on the market, and where offered may require high up-front expenditure, meaning the Standard has implications for whether exploitation in the Area is viable at all, as well as whether third parties at risk of harm can access appropriate protection. Similarly, the proposed regulatory step of pilot mining, taking place under an exploitation contract prior to commercial production, has given rise to questions about the precise definition of a test mine or pilot mine, when and at what scale such tests would be required and whether exemptions may exist, the procedure for carrying them out including ISA authorization, and how outcomes should inform ISA decision-making. A Council working group is working toward solutions, but many of the details will likely be covered by Standards.

The analysis also reveals critical gaps in stakeholder participation and compliance oversight. The 2026 draft regulations text contains a provision standardizing the stakeholder consultation requirements of a contractor, but no provisions setting out the ISA’s own consultation obligations. Stakeholders are left with little guidance or rights relating to public participation, including access to information, timelines or modalities for engagement, identification of stakeholders, selection of experts, criteria for incorporating feedback into decision-making, or avenues for access to justice where their views are not sought or taken into account. For a regulator acting as custodian of the common heritage of humankind, the absence of rules about how it engages its constituency in decisions that affect them is a critical governance gap envisioned to be elaborated in the form of a Standard. Meanwhile, the proposed Compliance Committee, intended to be a subsidiary organ of the Council that is more agile and specialized than the Council itself, remains contested, with conflicting state-led proposals about its constitution, mandate, composition and relationship to other ISA organs. No work has commenced on the Standards needed to operationalize it, and neither has the scope of its content been discussed. Taken together, the findings demonstrate the volume of instruments yet to be developed, coupled with the absence of a Council-agreed institutional framework to develop, prioritize and adopt them. The authors recommend that the Council develop with urgency a plan that is SMART, meaning Specific, Measurable, Achievable, Relevant and Time-bound, with clear allocation of responsibilities and budget, including an accurate Council-agreed list of Standards, a decision on phasing that addresses almost all Standards as Phase 1, formalization of a development process with public consultation, prioritization of Standards over Guidelines, and inclusion of the instruments as a standing agenda item at every Council meeting. Only through such structured and transparent leadership, the authors conclude, can the ISA demonstrate its credibility as a global regulator and steward of the deep ocean.

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

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

Article References: Subsidiary but central: the role of standards and guidelines in regulating deep seabed mining. (n.d.). https://doi.org/10.3389/focsu.2026.1838030

Image Credits: AI Generated

DOI: 10.3389/focsu.2026.1838030

Keywords: Subsidiary, central, role, standards, guidelines, regulating, deep, seabed, mining, scientific research