1. Introduction
As efforts to advance deep seabed mining (DSM) gain momentum, the International Seabed Authority (ISA), the global body tasked with regulating these activities, faces increasing scrutiny.Footnote 1 This intensified attention is hardly unexpected given the high stakes involved: DSM could unlock a vast and uncharted resource frontier, but it also poses substantial environmental risks amidst considerable scientific uncertainty, as well as uncertainty regarding the anticipated financial benefits for States from exploiting a shared resource.Footnote 2
The ISA is a unique institution in international law in that it possesses direct regulatory authority over deep seabed mining activities. Unlike most international institutions whose primary role is to develop rules and policies that are implemented by States, the ISA operates as a frontline resource regulator with mandated responsibilities to assess mining applications, oversee compliance, establish and protect royalties and distribute financial and other benefits to Member States.Footnote 3 To effectively and efficiently carry out these diverse regulatory functions, the ISA operates under a complex institutional structure that goes well beyond the plenary decision-making bodies typically associated with international organisations.Footnote 4 The structure that is emerging within the ISA has many features similar to the modern administrative agencies that emerged within domestic governance systems in the twentieth century, with authority being exercised by multiple bodies with less stringent links to the sources of democratic legitimacy.Footnote 5
Delegation and the exercise of discretion by specialised bodies is a necessary consequence of complex regulatory structures. However, as the exercise of authority moves away from plenary bodies to those that have limited State membership or which are composed of appointed experts, greater attention must be paid to the accountability of these actors to the community of States that conferred power upon these bodies and to those affected by their decisions.Footnote 6 The central contention of this article is that despite the extensive exercise of delegated authority with widespread and significant implications for both State and non-State actors, the ISA’s processes of administrative accountability are underdeveloped and deficient in light of the interests at stake.
The demand for robust administrative accountability is underlined by the normative principle that global regulatory bodies are obligated to account for affected interests.Footnote 7 In instances where the decisions are implemented by States, the accountability deficit is less apparent. However, as the density of global regulatory actions increases and exhibits more complex and direct forms of impact on non-State actors, greater attention is paid to addressing the legitimating conditions for the exercise of authority beyond the State.Footnote 8 The nature of affected interests in the case of DSM has a ‘public’ aspect owing to the common heritage of (hu)mankind status of deep seabed minerals.Footnote 9 The common heritage of humankind requires that resource activity and the benefits derived from those activities (both financial and non-financial) be governed on behalf of, and distributed between, ‘[hu]mankind as a whole’.Footnote 10 As such, the ISA is obliged to have appropriate regard for these common interests in addition to the specific interests of States, mining contractors and other directly affected persons. In the absence of a comprehensive system of accountability, the ISA is facing an increasingly serious problem of ‘disregard’. The problem of disregard in international organisations refers to both the structural and practical barriers that lead international organisations to fail to give sufficient consideration to the interests and concerns of those affected by their decisions and activities.Footnote 11
Administrative accountability refers to the elements commonly associated with ensuring that decisions and actions taken within the modern administrative State are responsive to affected interests.Footnote 12 These elements include institutional checks and balances over the exercise of authority, such as plenary oversight over delegated decision-makers, mechanisms that promote transparency and meaningful consultation, controls that promote integrity in decision-making processes and the opportunity for review of agency decisions to ensure conformity with legal requirements.Footnote 13 Administrative accountability is a response to the problem of disregard in that accountability mechanisms provide opportunities for potentially affected persons or groups to understand, assess and potentially influence the exercise of authority. Disregard often arises from decision-making requirements that are embedded in the structure of treaties. This is certainly the case with the ISA, which was the product of a complex configuration of interests, which, as elaborated upon in Section 2 and 3, has led to a decision-making structure that contributes to the ISA’s problem of disregard. The intention of this article is not to offer a critique of this structure; rather, this structure is taken as a given condition. Administrative accountability can, however, be an important counterweight to the largely fixed decisional attributes that contribute to disregard.
Addressing the ISA’s problem of disregard has considerable urgency for two reasons. First, the ISA is currently transitioning to the exploitation phase of mineral development, which will trigger more consequential (and irreversible) decisions and require the ISA to put in place more complex administrative systems to manage the day-to-day functions of regulating a large-scale mining operation—a process that is currently underway with the negotiation of the Draft Regulations on Exploitation of Mineral Resources in the Area (Draft Exploitation Regulations).Footnote 14 Second, the mandate of the ISA to manage DSM activities is under increasing pressure due to a growing recognition of the complexity and fragility of the ocean environment and a lack of consensus that the resource exploitation and marine environmental protection mandates of the ISA can be reconciled.Footnote 15 For example, the current contested state of DSM has led to proposals for the introduction of a mining moratorium.Footnote 16
International organisations are created to address goals that are more effectively managed collectively and, therefore, owe part of their legitimacy to the achievement of those goals.Footnote 17 The ISA’s legitimacy cannot rely solely on its success in enabling DSM since that outcome is increasingly disputed. This places growing importance on ‘process’ legitimacy—how decisions are made—and, specifically, on administrative accountability. Process legitimacy within the ISA is an important surrogate for source-based legitimacy derived through State consent. As authority is exercised further away from processes of State consent—including internal State processes, such as ratification and State implementation of international rules—the receptiveness of decision-making processes to those affected becomes an increasingly important source of legitimation. The receptiveness of decision-making processes to those affected becomes an increasingly important source of legitimation.Footnote 18
Section 2 of this article describes the current governance structure of the ISA, with a focus on the nature of the powers exercised and who they affect, the forms of delegation within the ISA and the degree of discretion exercised by the different governance bodies that constitute the organisation. It argues that the exercise of authority within the ISA, which is complex and removed from direct State control, requires robust approaches to administrative accountability. Section 3 turns to the accountability measures that may be available to address disregard. Drawing on principles of administrative law, the principal finding is that the ISA’s current approach to accountability is piecemeal and incomplete. While certain decision-making processes provide important opportunities for input and a degree of oversight, there is no comprehensive approach rooted in administrative legal principles to ensure fairness across the broad range of administrative functions that the ISA undertakes. As such, the article contends that the ISA should integrate stronger mechanisms for transparency, participation, and deliberation into its decision-making processes. The key challenge lies in formulating clear and consistent accountability standards capable of addressing the complex range of accountability relationships that the DSM regime generates.
2. Delegation and discretion in the ISA and the need for administrative accountability
The breadth of the ISA’s regulatory mandate is significant and akin to what one might expect of a terrestrial mining regulator. It has extensive and complex environmental responsibilities, including approvals, monitoring and compliance, as well as the responsibility to create policy instruments to coordinate environmental management on broader spatial scales.Footnote 19 Its economic mandate requires the management of a royalty regime, which includes tracking mineral production, enforcing royalty payments and distributing those financial benefits to members, as well as measures addressing economic adjustment assistance.Footnote 20 The ISA also has obligations regarding the promotion of scientific research and the sharing of scientific and technological knowledge among its members.Footnote 21 The scale of the ISA’s responsibilities necessitates a complex institutional arrangement with authority divided among several bodies, including a Secretariat tasked with wide-ranging bureaucratic functions.Footnote 22 To realise this structure, the ISA is endowed with wide-ranging powers, including implied powers necessary to organise and control DSM activities.Footnote 23
Under the ISA’s administrative structure, primary decision-making authority is exercised by States through two bodies: a plenary body, the Assembly, made up of 170 Member States, and an executive body, the Council, made up of 36 Member States.Footnote 24 Given the importance of States as both conferrers of authority on the ISA and as representatives of the interests of humankind, one might expect that the Assembly would be empowered to exercise broad supervisory powers. Indeed, the United Nations (UN) Convention on the Law of the Sea (UNCLOS) recognises the role of the Assembly as ‘the supreme organ of the Authority to which other principal organs shall be accountable’.Footnote 25 Despite this declaration, most decisions that fall within the mandate of the Assembly, such as those involving the adoption of rules and policies, the development of general policies and administrative, budgeting and financial matters, require collaboration with or prior recommendations from the Council.Footnote 26 If these recommendations are not accepted, the matter is returned to the Council for ‘reconsideration in light of the views expressed by the Assembly’.Footnote 27 Most operational matters, such as the granting of mining contracts and oversight measures, are not subject to the supervisory authority of the Assembly.
The Council, by contrast, is endowed with a wide-ranging set of executive and quasi-legislative powers, including the authority to adopt and provisionally apply rules and regulations, establish policies, approve mining contract applications, and oversee compliance matters.Footnote 28 The Council is divided into five interest groups representing different economic interests in DSM.Footnote 29 Voting rules are structured through super majoritarian voting and rights of objection are exercisable by each chamber to preserve the authority of the interests recognised by the voting chambers—empowering a set of interests that were a priority of the Parties in 1994 (when they were set through the Part XI Implementing Agreement).Footnote 30 This approach treats the configuration of interests in DSM as largely fixed. Yet the assumption of fixed interests is more difficult to maintain as more States Parties raise concerns about the environmental effects of DSM, as well as uncertainty over the ISA’s ability to deliver meaningful economic and non-economic benefits.Footnote 31
The structure of the ISA inverts the usual relationship between legislative and executive bodies, whereby the legislative branch is usually empowered to guide the policy direction of the executive in key areas. Instead, the Council is required in the exercise of its powers to ‘promote the interests of all the members of the Authority’—a provision that recognises the representative obligations of the Council, but provides limited oversight by the body that actually represents the interests of all Member States of the ISA.Footnote 32 In the absence of effective plenary oversight, the expectation of Council members to promote diffuse community interests ahead of their specific national interests runs contrary to prevailing understandings of State behaviour, and appears to be inconsistent with the Council’s interest-driven voting chamber structure.Footnote 33
While the Council exercises significant regulatory and enforcement powers, it too faces important limitations as a State-based body. The Council sits in sessions of only two to three weeks per year and, as a political body, has limited technical expertise in the substantive areas under its mandate.Footnote 34 The Legal and Technical Commission (LTC), a subsidiary body of the Council constituted of appointed experts, takes on the bulk of the technical work and makes recommendations to the Council.Footnote 35 Whilst this is nominally an advisory body, the LTC’s informal authority is substantial, including formulating and submitting drafts of rules and regulations and recommending whether to approve or reject a mining application.Footnote 36 The ISA also has a Financial Committee, which has a mandate to manage the ISA’s budget and to make recommendations over financial rules and regulations, including matters related to benefit-sharing.Footnote 37 While not yet actioned, there are proposals for the addition of a Compliance Committee that would oversee inspections and other matters related to compliance with ISA rules.Footnote 38
The relationship between the Council and the LTC established under UNCLOS and the Part XI Implementing Agreement gives rise to further accountability concerns. The LTC, as the de facto decision-maker of first instance on granting mining contracts, is not subject to plenary oversight by the Assembly which, given the LTC’s administrative and recommendary role, may be appropriate. However, the Council’s ability to supervise these decisions is also constrained. One of the idiosyncrasies of the ISA’s decision-making process, introduced by the Part XI Implementing Agreement, is that positive recommendations on the approval of mining contracts can only be rejected by a two-thirds majority of the Council, including a majority in each voting chamber.Footnote 39 The effect is to significantly constrain the Council’s control over its own decision-making since a plurality of States cannot overturn LTC decisions. There is an asymmetry to the decision-making process in that where the LTC recommends against an approval, the Council may reject that decision under its ordinary voting rules.Footnote 40 The peculiarity of this structure reflects concerns around monopolisation and economic interference and was put in place to depoliticise the approvals process by giving primacy to the technical assessment by the LTC.Footnote 41
The LTC’s legitimacy rests in large part on the technical expertise of its members and their independence from State control, although the qualification requirements are not specified in any detail and the nomination process remains State-controlled. Article 163 UNCLOS requires account to be taken of ‘geographic distribution and the representation of special interests’—considerations that belie the solely expert-driven nature of the LTC.Footnote 42 Recent negotiations concerning the composition of the LTC resulted in the expansion of the LTC from 15 members to 41 members.Footnote 43 This expansion reflects workload concerns but also suggests increasing interest from States in the representational dimensions of the LTC.
Whilst the LTC is a subsidiary body of the Council, recent practice has suggested an erosion or subversion of this relationship. For example, the LTC has ignored directions given by the Council on several recent occasions, including a failure to hold open meetings (as required by the Council), using the silence procedure for decisions, failing to report the names of non-compliant contractors to the Council and taking four years to review a Council member proposal of a Regional Environmental Management Plan template/procedure, returning it twice with an alternative version that failed to incorporate Council members’ recommendations without providing a rationale for those departures (despite specific Council requests to do so).Footnote 44 This trend of LTC autonomy has found support, with some Council members indicating that the Council ought not to circumscribe the LTC’s functioning to preserve the LTC’s independence.Footnote 45
Deference to technocratic decision-making introduces a narrow rationality that reflects the specialised mandate of many international organisations.Footnote 46 The justification for insulating the LTC from external influences rests on an understanding that the LTC’s recommendations are rooted in technical considerations and therefore do not involve the exercise of the kind of discretion that gives rise to the obligations of regard.Footnote 47 This understanding is questionable. LTC recommendations to authorise mining activity involve ambiguous regulatory standards and high degrees of scientific uncertainty, particularly around the determination of whether an application results in ‘serious harm’ to the marine environment and the adequacy of proposed environmental protection measures.Footnote 48
In some instances, the LTC’s exercise of discretion is unsupervised. For example, in its role in reviewing environmental impact assessment (EIA) reports for exploration activities (including test mining), the LTC makes its recommendation to the Secretary-General, which is then reported to the Council for informational purposes.Footnote 49 The LTC is empowered to develop Guidelines ‘of a technical nature’, without elaboration on what matters may be considered ‘technical’ in nature.Footnote 50 The role of the LTC currently goes well beyond the role of other scientific advisory bodies within international organisations.Footnote 51 This structure lends itself to an accountability lacuna, whereby the LTC making ‘technical’ ‘recommendations’ does not consider itself the decision-maker, and the Council, being expected to follow LTC recommendations, also feels relieved of accountability for the ISA’s decisions. The problem of disregard arises in part due to a failure to clearly delineate the boundaries between scientific advice and the exercise of political authority with potential to affect other interests.
Capacity constraints also play a role within the LTC, which operates on a limited sessional timeframe (with increasing intersessional work conducted remotely) and with LTC members unpaid for their services.Footnote 52 The mismatch between the limited capacity within the LTC and the Council and their respective mandates has resulted in the Secretariat playing a more active role in the development of policy and managing the quotidian demands of administering a mining regime. The question of delegation, and the ability of the Council or Assembly to delegate powers to the Secretariat, was addressed in a 2018 note to the Council (prepared by the Secretariat).Footnote 53 The note draws on the general presumption of delegation as a necessary corollary to complexity within administrative structures, and concludes that the Council has broad powers to delegate specific tasks to subsidiary bodies or to the Secretariat subject to ‘appropriate accountability and good governance’.Footnote 54 The note lists 25 potential areas of delegation to the Secretariat. Under the Draft Exploitation Regulations, there are numerous delegations to the Secretariat involving considerable discretion. For example, the Secretary-General is empowered to develop guidelines ‘of an administrative nature’ to determine whether a modification to a Plan of Work (part of the mining approval process) is a material change, and to issue temporary measures in the face of environmental emergencies.Footnote 55 The Secretariat also has wide-ranging powers in relation to the receipt and assessment of royalties.Footnote 56
In summary, authority is exercised by the ISA through diffuse points, all of which are exercising delegated powers. Delegation and discretion are necessary and are justified by the need for technical and administrative competences but must be accompanied by sufficient procedural safeguards to ensure that authority is being exercised in accordance with the terms of delegation and in conformity with any substantive constraints on the exercise of discretion.Footnote 57 In the case of the ISA, some of the conditions that give rise to accountability concerns are structural in the sense that they arise from the terms of UNCLOS and the Part XI Implementing Agreement. This structure was the outcome of a set of political compromises that brought the ISA into being and, as such, provides a foundational source of legitimacy flowing from the original State consent to the ‘rules of the game’. Nonetheless, recognising the potential for these structural features to contribute to disregard and adopting strategies for strengthening oversight and accountability are consistent with the ISA’s mandate to act in the interests of ‘[hu]mankind as a whole’.Footnote 58
In conceptualising the nature of the accountability of international institutions, Grant and Keohane make a distinction between delegation accountability and participation accountability.Footnote 59 Delegation accountability is primarily focused on the principal-agent relationship between States and international organisations, where States confer authority on institutions and institute measures to ensure that the authority is being exercised in accordance with the delegation. Participation accountability, on the other hand, recognises that international organisations owe obligations of regard to affected interests. Member States of the ISA perform a dual role as both conferrers of authority and as representatives of the interests of humankind. There is a tension between these roles that is particularly acute in the ISA since conferrers of authority are primarily interested in ensuring that authority is exercised in accordance with the mandate conferred by the constitutive instruments, while in their representational capacity, States are concerned with a much wider set of ‘public’ interests and concerns.Footnote 60
A challenge that the ISA faces is the complex nature of private and public interests in the deep seabed. The private interests, which include mining contractors and other users of the marine space, are more readily determinable. Public interests, on the other hand, are more diffuse and are complicated by questions of representation arising from the common heritage status of deep seabed resources, but also from the public law principle of affectedness that provides the legal basis for regard. Faced with similar challenges, domestic administrative law turned to procedural modes of legitimacy that seek to address the weakened links between electoral representation and the exercise of authority through the provision of opportunities for affected interests to participate in decision-making processes.Footnote 61 The ISA cannot rely on legitimacy rooted in general State consent to the decision-making structures found in UNCLOS, where highly consequential exercises of power are removed from direct State oversight. Nor can the ISA rely on the legitimacy derived from the ability of the ISA to solve technical problems and achieve the substantive goals of the ISA in light of pervasive uncertainty and increased disagreement over the merits of DSM. In the face of diminished source and substantive legitimacy, the exercise of authority is principally legitimised by process mechanisms that require decision-makers to account for the interests and values of those affected through institutional checks and balances, transparency measures, meaningful consultation, internal controls directed at integrity in decision-making and through providing those affected with avenues for review.
3. Mechanisms promoting administrative accountability
3.1. Plenary accountability
The role of the Assembly as an accountability holder is central for the oversight of delegated authority and to broader interest representation. Conferrers of authority have the right to ensure that authority granted is exercised as intended.Footnote 62 It is on this basis that the Assembly is identified as the ‘supreme’ body of the ISA and exercises a supervisory role in the development of certain ISA instruments.Footnote 63 The Assembly, given its plenary nature, has the strongest claim to oversee the exercise of authority delegated by States to other bodies. In its interest representation function, the Assembly is better placed to represent the interests of humankind, ‘on whose behalf the Authority shall act’.Footnote 64 The plenary body ought to be afforded opportunities to not only supervise the legality of the exercise of authority, but also to shape the exercise of discretion by subsidiary bodies, which is in keeping with the administrative law principle of legislative (plenary) control.Footnote 65
Whilst the ability of the Assembly to provide normative direction is constrained, the Assembly retains a measure of substantive control in relation to its approval authority over Council recommendations, which include the right to return a proposal to the Council for reconsideration in light of the ‘views’ of the Assembly.Footnote 66 The Assembly cannot bind the Council, but it can be clear and direct about its interests and concerns. The right to provide ‘views’ is found in Article 160 UNCLOS which establishes the Assembly as the ‘supreme body’, suggesting that ‘views’ ought to carry significant normative weight.Footnote 67 This power, which has not been exercised to date, offers an opportunity for greater dialogue between the Assembly and the Council.
The Assembly also possesses the ability to promote collective interests through its power under Article 160 UNCLOS to establish general policies with which the Council must act in conformity.Footnote 68 There is no restriction on the subject-matter of general policies which may address ‘any question or matter within the competence of the Authority’.Footnote 69 This power was subsequently qualified in the Part XI Implementing Agreement by requiring those policies to be established ‘in collaboration with the Council’.Footnote 70 There is some debate regarding the power of the Assembly to initiate general policies, but the wording of Article 160 UNCLOS indicates the process may be initiated and controlled by the Assembly.Footnote 71 The line between general policies and rules and regulations is unclear, but the term suggests more open-ended prescriptions aimed at the exercise of discretion by other subsidiary bodies, as opposed to direct regulatory control over contractors. This power has not been exercised but, in 2024, a proposal for the development of a general policy for the protection and preservation of the marine environment was raised in the Assembly.Footnote 72 While consensus on developing such a policy could not be achieved, the proposal was met with support from a cross-section of Assembly members, suggesting a greater willingness for the Assembly to exercise its policy-making powers.
While the Assembly has the legal right to provide views and develop general policies, the utilisation of such mechanisms is challenged by the requirement for Assembly decisions to be made by consensus or, if consensus proves unachievable, by a two-thirds majority.Footnote 73 Furthermore, decisions of the Assembly can only be made if the Assembly achieves quorum. Achieving quorum has been an ongoing issue for the Assembly;Footnote 74 the diffuse nature of State interests in deep seabed mining favours those Member States with direct interests in seabed mining, which may provide greater incentives for those States to attend ISA meetings. Measures directed at facilitating participation, such as remote attendance in meetings, may address capacity constraints faced by some (developing) States.Footnote 75
The Assembly also has control over the Article 154 UNCLOS review process, which is a mandatory undertaking to review the operation of the international regime established by UNCLOS which should happen every five years, but to which recourse has only been made once in the ISA’s 30-year history.Footnote 76 The scope of these periodic reviews is not constrained but, rather, allows for a broad assessment of the ISA’s current practices.Footnote 77 This mechanism provides a form of supervisory accountability by which the Assembly ‘may take, or recommend that other organs take, measures … which will lead to the improvement of the operation of the regime’.Footnote 78 The review itself may be carried out by a third party, which may provide a measure of independence.Footnote 79
3.2. Accountability through transparency and participation
Process models of administrative law provide an alternative avenue for representation of affected interests that compensate for the absence of State consent.Footnote 80 For non-State actors, the absence of the need for further domestic processes (such as ratification or implementing legislation) for decision-making at the ISA means that representation through administrative procedures is the only formal mechanism through which accountability may be sought. UNCLOS has a statist orientation, viewing representation as being mediated through States and State-based organisations, though the treaty language does recognise the special position of ISA contractors as regulated entities. Article 169 provides limited recognition of non-governmental observers, whose views may be sought in appropriate cases.Footnote 81 There is, again, a technocratic approach which emphasises the sharing of information with organisations that possess ‘specific competences’,Footnote 82 suggesting the goal is less concerned with representation than it is with the instrumental benefits of accessing expertise.
The central mechanism for extending participatory rights in the ISA is through the granting of observer status. Observer status is broadly available to non-Member States and, upon invitation of the Assembly, UN agencies, other international organisations and non-governmental organisations (NGOs).Footnote 83 Observer status provides access to both Assembly and Council meetings to make representations. Although the rules make the right to make statements for NGOs contingent upon Assembly approval, the practice has been to not impose restrictions.Footnote 84 The degree of access of observers and their ability to make direct representations to decision-makers is an important avenue for affected interests that may not be fully represented by Member States to be adequately considered. The issue of access, however, is not without controversy. In 2019, the then Secretary-General proposed a set of guidelines for the granting of NGO observer status, including a requirement that ‘[o]bserver status may not be granted to an NGO unless it undertakes to support the activities of the Authority’.Footnote 85 Whilst this condition was removed by the Assembly, it speaks to the contested nature of who is entitled to regard—specifically, whether dissenting entities ought to be given access to ISA processes.Footnote 86 This issue arose again after Greenpeace protests at sea led to calls for the observer status of Greenpeace to be revoked.Footnote 87
The ISA has developed robust processes of consultation around the development of new regulations for exploitation, which include the posting of draft regulation texts and the receipt and publication of comments from stakeholders. The practice of the ISA with other decisions, such as approvals of guidance documents issued by the LTC, the approval of EIAs and regional environmental plans, as well as other policies (e.g. its data management policy), has been less predictable and managed on an ad hoc basis. The development within the Draft Exploitation Regulations of public consultation mechanisms around certain processes, such as EIAs, would help regularise these processes. For example, the Draft Exploitation Regulations contain an inclusive definition of ‘stakeholders’.Footnote 88 The approach does not, however, distinguish between different types of interests, and the ISA runs the risk of giving insufficient weight to the specific procedural and substantive rights held by some.Footnote 89
There have been several studies in the past ten years reviewing the ISA’s public participation practices, including its practices regarding the sharing of information.Footnote 90 This literature points to a number of weaknesses relevant to the problem of disregard, such as the inconsistent availability of data from mining exploration activities, the limited range of participatory outlets, the absence of third party review procedures and the extent to which transparency and participation processes are ad hoc. A common theme throughout these studies is the failure of the ISA to adhere to accepted or emerging standards and practices associated with participation and transparency. Authors point to the Aarhus Convention and the Escazú Agreement, both of which implement Principle 10 of the Rio Declaration, as well as an increasing number of human rights instruments that emphasise participatory rights, particularly for Indigenous Peoples and local communities (IPLCs).Footnote 91 In other studies, authors have drawn on and compared the practices of other ocean resource international organisations, such as regional fisheries management organisations, as a basis for establishing standards.Footnote 92 The ISA Secretariat has taken a different view. In response to a 2024 statement raising the ISA’s lack of adherence to the requirements of the Aarhus Convention, the then Secretary-General positioned the ISA as a leader in public participation, citing the ability of observers to participate in Assembly and Council deliberations and the process of consultation with respect to the Draft Exploitation Regulations.Footnote 93
Looking at the adequacy of these measures through the lens of disregard points to several observations. First, procedural measures must be analysed in light of the broader decision-making architecture of the ISA that facilitates disregard. Providing access to the Assembly and the Council of the ISA in instances where those decision-makers’ discretion is institutionally constrained may be ineffective in improving accountability. It is for this reason that many commentators have focused on the more limited access to and transparency of the LTC, whose recommendations are either difficult to refuse (in the case of mining approvals) or, at a minimum, frame the issue and set the agenda for the Council and Assembly.
A related element of procedural accountability is the extent to which decision-makers are open to being persuaded by interventions.Footnote 94 Beyond the structural constraints, assessing whether or not participatory processes are mere lip service requires the provision of reasons; if the information and perspectives are to be meaningfully accounted for, decision-makers must provide a reasoned justification for the decisions by which those entitled to regard can understand and assess the basis for the decision.Footnote 95 The provision of reasons has been recognised as central to the avoidance of non-arbitrary decision-making and ought to be connected to the general requirement of good faith found in Article 157 UNCLOS.Footnote 96 The practices of the ISA do not require the provision of reasons for key decisions and recommendations. The LTC, for example, is not required to provide a reasoned basis for its recommendations for the approval of a Plan of Work under the Draft Exploitation Regulations unless the decision is to reject the application.Footnote 97 The mining contractor is given the opportunity to respond to these reasons, whereas those concerned with the approval of mining contracts are not given the benefit of reasons and, therefore, the ability to further respond. The Council, in considering the LTC’s recommendations, is similarly not bound to give reasons.Footnote 98 There is therefore an unevenness in approach that favours the formal interests of contractors but disregards more diffuse interests.
A third contextual factor is the distribution of informational resources within the ISA. Unlike domestic resource regulators, the ISA has very limited capacity to assemble the necessary data to effectively regulate mining activities. There is significant informational asymmetry between the ISA as a regulator and the entities it seeks to regulate, resulting in a high degree of reliance on contractors to provide regulatory inputs, such as environmental baseline data or notifications of their own non-compliance.Footnote 99 The financial regime model will similarly rely on contractor disclosure, subject to audits.Footnote 100 One recent study of the ISA’s emerging regulatory structure notes the high degree of self-verification within the emerging compliance structures.Footnote 101 The degree of self-regulation reflects the challenges of regulatory oversight over DSM activities, which are remote and would require significant technical and financial capacity to monitor independently. The self-regulatory nature of DSM is compounded by the fact that some mining contractors are States or State agencies and are therefore overseen by a body in which they participate. Contractor self-regulation militates strongly in favour of more robust and proactive transparency. There is an emphasis on confidentiality of information that stems from competitiveness concerns requiring the balancing of public and private interests.Footnote 102 The proposed Draft Exploitation Regulations set out the basis for determining confidentiality but leave broad discretion in the hands of the Secretary-General or the LTC.Footnote 103
The approach that is emerging within the ISA is to address questions of transparency and participation on a process-by-process basis. Some positive developments in this regard are notable within the Draft Exploitation Regulations, which include an acknowledgement of transparency and participation as fundamental principles, a proposal for a publicly accessible ‘Seabed Mining Register’ and clearer consultation processes for environmental plans associated with mining applications.Footnote 104 The approach, however, remains uneven and incomplete, with many key decisions involving royalties, compliance, determinations of confidentiality and closure not subject to scrutiny. In any event, the Draft Exploitation Regulations do not capture the extent of the ISA’s decision-making authority, nor do they reflect current practice.
The principal accountability deficit that the ISA faces is its failure to treat procedural protections as part of a system of administrative accountability. In domestic governance structures, administrative law is understood to be pervasive and subject to a consistent set of principles. Administrative law principles of general application have been much slower to develop in international organisations, owing in part to the heterogenous structure and decision-making context of international organisations.Footnote 105 Nonetheless, a more systematic approach can be adopted in relation to a particular international organisation, such as the ISA. This is not to suggest a uniform approach must be applied to all decision-making within the ISA. The principles of procedural fairness tend to be applied in ways that are sensitive to, inter alia, the importance of the decision, the interests at stake and the structure of the broader regulatory scheme in which the decision occurs.Footnote 106 A recent example of a principle-driven approach is found in the Biodiversity Beyond National Jurisdiction Agreement, which contains a general provision on institutional transparency that establishes openness of decision-making bodies as the default position and requires the plenary body to promote transparency in implementing the Agreement.Footnote 107
A fundamental question concerning the ISA’s participatory practices involves determining which procedural safeguards apply to the ISA’s different decision-making processes. Given the substantial degree of delegation and broad discretion exercised by various decision-making bodies, and in light of the interests at stake, the procedural protections provided ought to be at the higher end of the spectrum of procedural fairness. There are numerous sources of standards within international law that the ISA could draw upon, such as the abovementioned Aarhus Convention and Escazú Agreement, as well as precedents from domestic administrative legal systems and the practices of other international organisations. That said, the requirements are necessarily dynamic, responding to both evolving recognition of new interests and rights in the ocean and to scientific and technological advancements.
3.3. Controls on corruption and improper influence
Delegation gives rise to an expectation that the powers conferred will be exercised in furtherance of the organisation’s objectives and not in pursuit of private interests. To this end, governments and international organisations have developed rules and processes to prevent corruption, conflicts of interest and the ability of special interests to improperly influence decision-making.Footnote 108 The nature of the ISA’s direct regulatory mandate creates strong incentives for rent-seeking actors to seek to influence regulatory outcomes. While the impugned behaviour involves both those seeking to influence and decision-makers or bureaucrats whose favour may be sought, the controls are typically directed internally towards actors within the agency.
In the case of the ISA, these rules are found within the rules of procedure of the organs of the ISA and within the staff regulations and rules. For example, the Rules of Procedure of the LTC include a conflict-of-interest provision, which simply reflects a requirement of UNCLOS that Member States shall not have financial interests in any exploration or exploitation activity, and confidentiality requirements.Footnote 109 The Staff Regulations contain similar provisions, including procedures for the filing of financial disclosure statements.Footnote 110 A missing element of the anti-corruption rules is whistleblower protection that would provide a clear mechanism for the reporting and investigation of breaches of conflict of interest and other anti-corruption rules, along with protections for those reporting concerns.Footnote 111 The UN has such a policy, which makes it clear that staff have a duty to report suspected misconduct and is supported by an international oversight mechanism.Footnote 112 Whistleblower protections have been suggested for inclusion in the Draft Exploitation Regulations, with some delegations indicating that whistleblowing would be appropriately placed in a general policy.Footnote 113
There are few rules regulating the interactions between contractors or other non-State actors and ISA officials. The dividing line between appropriate access and improper influence has been a source of controversy for the Secretariat, which has faced allegations of being too close to mining interests.Footnote 114 There has been a movement towards adopting lobbying protocols, which are common in domestic settings, within international settings.Footnote 115 The Organisation for Economic Co-operation and Development has adopted recommendations on international standards for ‘transparency and integrity in lobbying and influence’.Footnote 116 A similar set of standards has also been developed through a collaboration of civil society groups, which explicitly includes supranational public officials within the scope of the recommended standards.Footnote 117 Both approaches recognise the need for exchanges of views between public officials and stakeholders, but require registration of interests and disclosure of interactions through a public registry.
The ISA has no formal lobbying disclosure procedures that would define the boundaries of appropriate interactions between decision-makers and those with special interests. The LTC has taken some steps to regularise interactions between contractors and the LTC through the issuance of ‘modalities for exchange of views’.Footnote 118 The interactions would be mediated by the Secretariat and could involve the sharing of information and the exchange of views. Records of the exchange would be kept for ‘internal purposes only’.Footnote 119 The need for the exchange of views to be publicly reported (to the Council) is acknowledged, but the extent of disclosure is not detailed.Footnote 120 The approach is only available to contractors, ignoring the potential contributions that other interested groups could make to LTC decisions.
3.4. Review mechanisms
Central to the effectiveness of administrative accountability mechanisms is the availability of review, which provides a mechanism for policing the boundaries of due process and legality. Judicial avenues of review of ISA decisions are available to select interests. Member States can initiate proceedings before the Seabed Disputes Chamber (SDC) of the International Tribunal for the Law of the Sea against the ISA concerning acts or omissions of the ISA contrary to Part XI UNCLOS, the rules and regulations of the ISA and/or for acts in excess of jurisdiction.Footnote 121 However, this avenue is limited by constraints on who can bring a claim (principally States), which claims can be brought and political constraints on challenging an international organisation of which one is a Member State.Footnote 122
Mining contractors, in relation to their regulatory and contractual relationship with the ISA, have specific rights of standing before the SDC to seek review of refusals by the ISA to grant contracts and to resolve contractual disputes.Footnote 123 The more extensive legal rights of contractors and concerns about the ISA’s liability for interfering with established contractual rights may give contractors stronger leverage to influence ISA decisions than other stakeholders. For example, contractors have raised the spectre that a failure to put forward a set of clear legal rules that provides a pathway towards exploitation may be contrary to their legitimate expectations—an administrative law claim that protects the expectations of investors that have relied on certain representations, policies or consistent past practices.Footnote 124 The access to legal recourse of mining contractors to pursue economic claims stands in sharp contrast to the less clear rights of standing of States or third parties to pursue environmental or human rights related claims.Footnote 125
The SDC has the ability to provide advisory opinions at the request of either the Assembly or Council, which may express views on the powers of the ISA or its constituent bodies.Footnote 126 For example, the 2011 Advisory Opinion on the Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area commented on the ability of the ISA to make a claim for environmental damage to the Area, as well as the relationship between the liability of contractors, sponsoring States and the ISA.Footnote 127 The extent to which international courts can perform a judicial review function has been the subject of academic debate, which is relevant to the accountability of the ISA.Footnote 128 However, the extent to which the SDC can review the decisions of the ISA is constrained by Article 189 UNCLOS, which prevents the SDC from pronouncing itself on whether ‘the rules, regulation and procedures of the [ISA] are in conformity with the Convention’.Footnote 129
While formal avenues of judicial review remain a rarity in international law, there are examples of quasi-judicial or administrative review functions that the ISA could draw upon. The World Bank Inspection Panel, for example, provides an avenue for any individual or group negatively affected by the Bank’s financing decisions to have those decisions reviewed by an independent fact-finding body that investigates compliance with the Bank’s policies and procedures.Footnote 130 The North American Agreement on Environmental Cooperation (which addresses trade-related environmental effects) has a citizen submission process, which provides a mechanism to create a review process of a State Party’s failure to enforce its environmental laws.Footnote 131 The point here is not to suggest that these exact mechanisms may be appropriate for the ISA but, rather, to note that there may be other forms of review that could provide a measure of accountability. Given the extensive delegation of powers to the Secretariat, enhanced oversight by political bodies with broad rights of initiation by affected persons would enhance accountability. The Article 154 review process discussed in Section 3.1 can be understood as operating within the broader framing of administrative review procedures, albeit on a more general level.
4. Conclusion
This article has argued that the ISA is facing a problem of disregard that arises from a combination of structural factors. First, the ISA has a direct regulatory mandate and therefore exercises authority that has broad and highly consequential effects on both private and public interests. Second, to effectively carry out this mandate, the ISA, through its various organs, exercises delegated powers which attenuate the relationship between State consent and ISA decision-making authority. The fundamental challenge is that to carry out its functional mandate, the States Parties, through both UNCLOS and subsidiary instruments, have conferred significant discretion upon decision-makers that are not directly answerable to either States or affected persons. The problem of disregard is heightened by the common heritage status of deep seabed resources, which recognises the public dimension of the interests at stake.Footnote 132
The legitimacy of the ISA’s exercise of authority draws on the consent of the States Parties to the institutional structure of the ISA as laid out in UNCLOS and the Part XI Implementing Agreement but, like the conditions within domestic regulatory environments, the legitimating effect of consent is too remote to be sufficient. While delegation away from plenary bodies can be partially justified by the need for technical expertise, the highly uncertain and increasingly contested scientific and normative conditions within which the ISA operates militates in favour of a more direct form of interest representation through administrative accountability measures. At the heart of this argument is the fundamental legal principle that those affected by the exercise of legal authority are entitled to have their interests and perspectives taken into account.
The ISA, in its development of the DSM regime, recognises the importance of administrative accountability but its approach to date has been piecemeal and unsystematic. This had led to the ISA Secretariat making claims that it has demonstrated leadership in the provision of administrative procedures while numerous studies of the ISA’s practices have pointed to shortcomings. While the authors share many of these specific concerns, the argument here is that the ISA has failed to approach administrative accountability in a comprehensive manner. As a result, while the ISA provides some avenues for transparency and consultation, many decisions are made without providing procedural protections notwithstanding the interests at stake. This is not an argument of degree. Rather, the argument is that the ISA’s structure is fundamentally incomplete. Administrative protections within modern regulatory structures are pervasive in the sense that the exercise of legal authority ought to be subject to the rule of law and therefore constrained by both substantive and procedural requirements. What is required is the suffusion of public law values within the ISA, namely, openness, participation, integrity, rationality and review.Footnote 133
It is not suggested that every exercise of discretion needs to be subject to robust accountability measures. Proportionality is a central feature of administrative law.Footnote 134 Thus, there is no inconsistency between administrative accountability and the requirement for cost-effective and ‘evolutionary’ development of the ISA’s governance structure (called for in the Part XI Implementing Agreement).Footnote 135 Indeed, from an evolutionary perspective, the ISA’s functions and legitimacy requirements have now evolved to such an extent that comprehensive attention to administrative accountability is urgently required.
This argument aligns with general calls for the development of ‘effective, accountable, and transparent institutions at all levels’.Footnote 136 In order to further this goal in relation to the ISA, two principal questions must be addressed. First, the standards of accountability that should apply to the ISA need to be further investigated. Several key sources of such standards have been identified, including international instruments addressing decision-making, the practices of other international institutions and general principles of global administrative law. It is significant that many of these sources have arisen since the completion of negotiations over the structure of the ISA in 1994. In the intervening 30 plus years, there has been a growing recognition of the increased potential for disregard in international settings and the important role of administrative accountability in addressing it, which leads to the second area for further inquiry.
Second, addressing administrative accountability requires careful attention to the structural architecture contained within UNCLOS and the Part XI Implementing Agreement. The intention here is not to provide a general critique of the negotiated structure of the ISA but, rather, to promote a recognition of the avenues by which accountability can be improved within the existing architecture of the ISA. The article has pointed to several of these mechanisms including the Assembly’s authority to establish general policies and the review mechanism under Article 154 UNCLOS. While administrative protections are rooted in the rule of law, their development and implementation require careful attention and, at times, deference to political processes. Addressing the ISA’s problem of disregard provides opportunities for a more broadly democratic and deliberative approach to the politics of deep seabed mining.
Looking forward, a new Secretary-General was elected by the Assembly in 2024. Upon assuming the role on 1 January 2025, she emphasised the importance of ‘collaboration, effectiveness, equity, inclusiveness, transparency, accountability and sustainability’ for the ISA.Footnote 137 In light of the above conclusions, this is an encouraging signal to the Member States of the ISA and could open some avenues for reform of internal procedures over which the Secretary-General has authority as the ISA’s chief administrative officer.Footnote 138 Despite this, the accountability deficits discussed here are systemic and need to be addressed by the State Membership in a manner that recognises the need for deeper institutional change, and should not be dependent upon the discretion of the Secretary-General or any other single official to address.
Acknowledgments
This paper originated from a workshop on ‘Effective, Accountable and Transparent Governance Practices for Common Heritage Resources’ held in Potsdam, Germany, in February 2024. The authors are grateful to the participants in the workshop who shared their insights. The authors are particularly appreciative of the comments received from the members of Expert Working Group assembled for this project—Niels Blokker, Edith Brown Weiss, Kristina Daugirdas, Megan Donaldson and Surabhi Ranganathan. Any errors remain the responsibility of the authors. Funding for this project was provided by the Social Sciences and Humanities Research Council of Canada.
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