Challenges to Public and Indigenous Peoples’ Participation at the ISA

At the outset, it is essential to place the quest for Indigenous peoples’ participation at the ISA in the broader context of the limited consideration of human rights under that regime. Currently there is no practice among ISA member states to raise issues of compliance with their international human rights obligations towards Indigenous peoples, as well as other relevant human rights holders, in the context of decisions on deep-seabed mining.Footnote ²

Public participation at the ISA is generally quite limitedFootnote ³ and increasingly difficult,Footnote ⁴ despite high expectations to the contraryFootnote ⁵ due to the importance of the ISA's mandate to protect the marine environment and represent humankind.Footnote ⁶ This shortcoming is exacerbated by the fact that the legal mandate of the ISA organs is remarkably different from their actual contributions to decision making. Although the supreme organ comprising all member states, the ISA Assembly,Footnote ⁷ is meant to approve ISA policies and regulations, it functions mainly as a rubber-stamping forum in practice.Footnote ⁸ So, unless there is a significant reform of the Assembly's practices, it would be of limited impact for Indigenous peoples to be represented in that organ.

The ISA's executive body—the Council, comprising thirty-six member statesFootnote ⁹—makes key decisions on the content of the draft regulations on mineral exploitation, the award of contracts for exploration or exploitation in the Area (the seabed and subsoil beyond the limits of national jurisdiction), and the exercise of control over those contractors.Footnote ¹⁰ But, in practice, the Council is bound to follow recommendations by a subsidiary organ—the Legal and Technical Commission (Commission)—for approval of a new contract, unless two-thirds of the Council members present and voting object.Footnote ¹¹ In other words, the “real decisions” are taken by the Commission. The Commission is made up of state-nominated subject-matter experts,Footnote ¹² and focuses on contract awards, rules, and regulations of the ISA, and oversight of contractors.Footnote ¹³And while the Council is meant to exercise political oversight over the Commission to ensure that decisions are in line with the international obligations of member states, the Commission's reports to the Council do not provide sufficient information to effectively exercise that role.Footnote ¹⁴ So while participation of Indigenous peoples in the Council would be more meaningful than in the Assembly, in practice it would not be sufficient to gain a real opportunity to influence decision making at the ISA. This is the case unless/until a reform of the practices of the Council in its relationship with the Commission is undertaken, as discussed below.

Crucially, the Commission prepared the first draft of the Exploitation Regulations for Council.Footnote ¹⁵ For Indigenous peoples to have an impact on the development of the international regulation of deep-seabed mining (through the drafting of the Exploitation Regulation and the issuance of contracts) and control over deep-sea mining operations (through the oversight of contractors), their participation should be secured within the Commission. Even before the adoption of the regulations, other decisions by the Commission may have negative environmental, social, or cultural impacts and may therefore benefit from participation by Indigenous peoples. For instance, there have been specific instances where the Commission made decisions on the testing of environmentally harmful technology without sufficient public participation or consideration of biodiversity or human rights impacts.Footnote ¹⁶

Given the de facto powers of the Commission, it is therefore crucial to ensure the participation of Indigenous people's representatives in this organ. But this is, at present, an unlikely prospect, as the Commission's characterisation as a technical advisory body has avoided calls for broader representation. In addition, the lack of a legal requirement for Commission members to serve in an independent capacityFootnote ¹⁷ has allowed individuals with vested interests, either from a government or private sector perspective, to sit on the Commission.Footnote ¹⁸ A meaningful exchange within the Commission is further complicated by reliance on email exchanges, rather than a debate, and decision making within rushed timeframes.Footnote ¹⁹ It is difficult, at present, to challenge these practices through the oversight of other ISA organs because the Commission meetings are closed, despite repeated requests to the contrary from the ISA Assembly and Council.Footnote ²⁰ An overall reform of the Commission practices is therefore an urgent imperative for the participation of Indigenous peoples at the ISA to make any difference.

Obligations and Opportunities to Ensure Indigenous Peoples’ Participation in the ISA

There are specific international obligations under international human rights law treatiesFootnote ²¹ for ISA member states to ensure that Indigenous peoples participate in decision making in matters that could affect their rights.Footnote ²² Deep-seabed mining can lead to irreversible loss of marine biodiversity,Footnote ²³ which in turn can have significant negative effects on the capacity of the ocean to contribute to a safe climateFootnote ²⁴ and knock-on effects on Indigenous peoples’ human rights, including those inextricably linked to their distinctive knowledge related to marine areas and marine life.Footnote ²⁵ In other words, deep-seabed mining can reduce the availability, accessibility, and acceptability of marine spaces and marine resources in the Area (but also in other marine areas that are ecologically connected to the AreaFootnote ²⁶) that are essential for Indigenous peoples’ culture on which their identity, well-being, and development are reliant. In addition, it has now been recognized that Indigenous knowledge should be relied upon in protecting the marine environment in areas beyond national jurisdiction,Footnote ²⁷ which suggests that Indigenous knowledge would enhance the quality of the ISA decisions to the benefit of everyone's human right to a healthy environment.Footnote ²⁸

These obligations, in turn, entail a series of requirements of transparency. First and foremost, international human rights law requires “affordable, effective, objective, understandable and timely access to information that should enable [Indigenous peoples] to understand how environmental harm may undermine their rights to life and health and support the exercise of participation rights.”Footnote ²⁹ In addition, the ISA has to provide a justification for how it took into account inputs from Indigenous peoples, indicating “the extent and range of expertise underpinning the decision and the range and extent of public inputs.”Footnote ³⁰ This would entail Indigenous peoples being made aware of how potential environmental harm and negative impacts on their human rights have been taken into consideration. Finally, ISA member states are expected to take additional measures, including strategies and programs, to make sure that marginalized groups and those holding specific rights that could potentially be affected, such as Indigenous peoples, can participate in decision-making processes.Footnote ³¹

To comply with these obligations, I propose a series of legal interpretations of existing rules under the ISA that can change the practices of its organs. The rules on the composition of the Commission, for instance, should be interpreted to include representatives of Indigenous peoples, due to the need to include special interests and appropriate qualifications related to the protection of the marine environment, as well as on economic and legal matters.Footnote ³² In addition, the Commission can consult relevant UN bodies or other international organizations,Footnote ³³ which should be relied upon to invite a representative of the UN Permanent Forum on Indigenous Issues, for instance.

In addition, Indigenous peoples’ representative organizations or specialized UN bodies could seek observer status at the ISA Council and Assembly. The ISA secretary-general has the duty to put in place appropriate arrangements for consultation and cooperation with international organizations,Footnote ³⁴ which may nominate observers to the meetings of the different ISA organs.Footnote ³⁵ Representatives of Indigenous peoples or Indigenous issues experts could also be included in the ISA Finance Committee, which advises on the development of rules for the ISA's future benefit-sharing regime.Footnote ³⁶

Another venue for including Indigenous peoples are the intersessional webinars and expert workshops organized by the ISA Secretariat, which lead to the development of reports published on the ISA website. Although it remains unclear the extent to which these expert reports contribute to the decisions taken by the Commission,Footnote ³⁷ this is still an important opportunity to interact with experts and stakeholders and influence the debate underpinning the decisions at the ISA. However, the ISA Secretariat has so far mainly invited contractors and scientists/academics already working in the area of deep-seabed mining.Footnote ³⁸ A change in practice would therefore be needed at the ISA Secretariat to extend invitations to Indigenous peoples’ representatives.

Concluding Words of Concern and of Hope

Even if efforts to include Indigenous peoples more systematically across ISA organs and events were to be successful, it should be borne in mind that “a seat at the table” is not necessarily a genuine opportunity to be heard and to influence the process. Two underlying challenges must be considered, in addition to the general barriers to public participation at the ISA discussed above. First, it is necessary to overcome “prejudicial stereotypes” and “misconceptions” about Indigenous peoples’ authority and credibility to contribute to this area of international decision making.Footnote ³⁹ Second, it is necessary to identify and address any “unfair distribution of conceptual resources needed for speakers to have a say.”Footnote ⁴⁰ The current meeting formats and dominant understanding of science within the ISA (as well as in many other intergovernmental fora) are inherently stacked against an open and meaningful exchange with different world views and knowledge systems. ISA experts may be unaware of Indigenous peoples’ preferred communicative practices and “fail to give appropriate uptake to their attempts to communicate.”Footnote ⁴¹

To address these concerns, it is recommended that appropriate resources and expertise are put in place to support meaningful dialogue across knowledge systems, also taking into account the history of marginalization of Indigenous peoples and the current power imbalances and vested interests at the ISA, in order to prevent further violations of Indigenous peoples’ human rights. To that end, it would be essential to include experts in the social sciences and arts (or rely on their insights and approaches) to restructure the process and help build the capacity of existing ISA experts and decisionmakers to meaningfully listen and respectfully engage with Indigenous peoples.Footnote ⁴² In addition, advice from the UN Special Rapporteur on Indigenous Peoples’ Rights, the UN Permanent Forum on Indigenous Issues, and/or the UN Office of the High Commissioner for Human Rights, as observers in the ISA Council and/or advisors to the Legal and Technical Commission, would be beneficial to build a more human rights-cognizant institutional culture at the ISA.

Finally, it is crucial to combine efforts to ensure the meaningful participation of Indigenous peoples in the current ISA decision-making structure with the push to bring about a more radical reform of the decision-making practices at the ISA. An opportunity to do so will be the upcoming periodic review of the ISA, on which a decision of the ISA Assembly is expected in July 2024.Footnote ⁴³ The review process itself should include Indigenous peoples and human rights expertise, such as inputs from the UN Special Rapporteur on Indigenous Peoples’ Human Rights, the UN Permanent Forum on Indigenous Issues, and the UN Office of the High Commissioner for Human Rights. The review could also draw on the standards on transparency and participation enshrined in the 2023 Agreement on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction,Footnote ⁴⁴ where, for instance, the Scientific and Technical Body members are to serve “in their expert capacity and in the best interest of the Agreement.” These members should have “suitable qualifications, taking into account the need for multidisciplinary expertise, including . . . expertise in relevant traditional knowledge of Indigenous Peoples and local communities.”Footnote ⁴⁵ Even if the Agreement is not yet in force, it provides clear evidence of the progressive development of the law of the sea in terms of recognition, participation, and protection of the human rights of Indigenous peoples, which should support an evolutive interpretation and change in practices also at the ISA.