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

1 Introduction

The International Seabed Authority (ISA) is the intergovernmental body mandated under the United Nations Convention on the Law of the Sea (UNCLOS) to regulate mineral-related activities in the international seabed area beyond national jurisdiction (“the Area”). The Area and its resources are “the common heritage of [hu]mankind.”¹ The ISA is responsible for ensuring that their exploration and exploitation are conducted for the benefit of all, which includes ensuring protection of the environment, and equitable access and benefit.² Central to this dual mandate is the development of a comprehensive legal and institutional framework. The ISA is currently negotiating Exploitation Regulations, which are required for the first mining operations to be permitted.³

However, the Exploitation Regulations alone will not suffice to constitute the ISA's regulatory regime. The ISA's executive body, the Council (comprising 36 elected member States), has decided that a suite of subsidiary instruments—referred to as Standards and Guidelines (S&G)⁴ —is required to give technical and procedural detail to the Regulations. These instruments are expected to address a wide array of complex issues, from baseline environmental data collection and impact assessment methodologies to monitoring protocols, compliance mechanisms, and contractor performance benchmarks. Despite their critical role, most of the S&Gs remain under development.

The ISA faces intensifying scrutiny and time pressure in its rule-making processes. At the same time, there has been increased geopolitical and economic interest in deep seabed minerals, intensifying the debate over their need in the green energy transition, digital innovations, and national security. In this context the ISA faces increased demand for regulatory clarity by different stakeholders.⁵ Pressure on the ISA has been compounded by the United States—a non-party to UNCLOS—asserting its right to unilaterally mine the Area under its domestic legislation, and fast tracking domestic permitting of deep seabed mining applications.⁶ At the time of writing, five applications for exploration and exploitation licenses have been progressed for public consultation.⁷ Some actors have linked the need for speedy adoption of the ISA regulatory framework to the US licensing process.⁸ Together, these dynamics place the ISA in a precarious position: tasked with finalizing complex regulatory instruments under accelerated timelines, while maintaining legitimacy, environmental integrity, and equity in the face of mounting political and commercial pressures.

Against this backdrop, this paper examines the role and status of the S&G, arguing that the scale and complexity of the S&G agenda demand prioritization if the ISA is to fulfill its mandate and respond to international pressure credibly and coherently.

2 What are S&G?

The legal underpinning for S&G is derived from UNCLOS and the 1994 Agreement, e.g.:

• Article 145 UNCLOS, which requires the ISA to take necessary measures (including RRPs) to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area;
• Annex III, Article 17 (1)(b) (xii), which requires the ISA to adopt and apply RRPs on “mining standards and practices, including those relating to operational safety, conservation of the resources and the protection of the marine environment”; and
• Annex to the 1994 Agreement, Section 1 (5)(g) which requires the ISA to “concentrate on adoption of rules, regulations and procedures incorporating applicable standards for the protection and preservation of the marine environment.”

ISA regulations are the primary instrument designed to meet these UNCLOS rule-making obligations. But due to the range and complexity of topics that must be covered, the ISA's Council has decided in the course of its negotiation of the draft Exploitation Regulations that these will need accompaniment by legally binding Standards, and recommendatory Guidelines, that can cover procedural or operational detail.⁹

The draft negotiating text for the Exploitation Regulations indicates that Standards will be:

• recommended to the Council for adoption by the LTC (after a public consultation),
• regularly reviewed and updated,
• legally binding,
• a fundamental term of contracts, such that compliance with Standards is mandatory and (non-compliance can trigger certain penalties pursuant to Annex III Article 18 UNCLOS),
• aimed toward an “outcomes-based approach,” where feasible (i.e., focused on desired results rather than prescribing specific processes or systems), and
• designed to describe how “the Authority and Contractors shall implement the regulations.”¹⁰

Guidelines are referred to within the draft regulations as “administrative” in nature and aimed to assist implementation of the regulations. Guidelines can be issued by the Council's subsidiary organ the Legal and Technical Commission (LTC) or by the ISA's administrative organ the Secretariat. Guidelines will be non-binding and recommendatory. Some aspects of Guidelines remain unsettled. For example, some member States propose that Contractors should be expected to observe all Guidelines to the “furthest extent possible,” which is similar to the approach taken with another type of instrument called the “LTC Recommendations for the Guidance of Contractors.” Another proposal is that exploitation contractors could be required by the Regulations to explain any divergences from the Guidelines. This would serve both to give the ISA notice of possible performance issues, but also to identify when contractors consider the Guidelines to be out of date or in need of improvement.¹¹

From the above we can draw out that S&G will assist in the implementation of the Regulations in different ways—(1) by providing additional detail on an aspects covered within the Regulations that would be too lengthy or prescriptive within the Regulations themselves; (2) providing an avenue to add new areas not covered by the Regulations but where regulatory clarity is needed; and crucially (3) affording 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 revision of the regulations themselves. From this it is clear that the Regulations and the S&G are inherently intertwined.¹² Such interdependence implies that agreement by the Council on the S&G must occur before or in parallel with the Regulations to assure States that the framework sufficiently addresses all necessary elements.¹³

3 History of S&G development at the ISA

The journey undertaken by the ISA to reach these apparent points of agreement about S&G is worth noting.¹⁴ In March 2019, the LTC presented the Council with draft Exploitation Regulations [ISBA/25/C/WP.1], which included references to ISAS&G.¹⁵ During the 25th session of the ISA in 2019, the Council directed the LTC to examine the issue of S&G.¹⁶ In order to assist with that work, the LTC convened a multi-stakeholder workshop in May 2019 held in Pretoria, South Africa. The workshop participants were provided various technical inputs envisioning the role of S&G in the ISA's regulatory regime, prepared by the ISA Secretariat.¹⁷

It is notable that at this stage the role and nature of S&G was open to interpretation. From the background documents it is evident that some conceived S&G to be ISA instruments that would cross-refer to external standards, e.g., standards set by other international organizations such as the International Maritime Organization, or by industry-led processes such as are prevalent in better established extractive industries, or by standardization body processes that can be cross-sectoral—such as the ISO.¹⁸ But during the workshop and over time since, the concept of the role and substance of ISA S&G evolved.

The outcomes of the 2019 Pretoria workshop formed the basis and the framework for much of the discussion that continues today around the S&G.¹⁹ Workshop outcomes that appear to have been taken forward by the Council subsequently included proposals that—

• ISA Standards are part of the RRPs and are binding on Member States, Contractors and the Authority;
• ISA “Guidelines” identify a recommended path for implementing the RRPs. They do not require approval of the Council but must be reported to Council, which may request that the Guideline be modified or withdrawn;
• A three phased approach to S&G development;
• An outcomes-based approach;
• Identification of 16 specific S&G under Phase 1, i.e., those to be developed prior to regulations being adopted;
• A recommended approach for the development of the process for adoption of S&G, including the role of the LTC, Council, Assembly and the incorporation of stakeholder comments.

Drafts of 10 S&G under phase 1, based on the 2019 Pretoria workshop outcomes (rather than any direction from the Council), were prepared by the LTC in 2020–2021, and released to the Council for its comment and review in 2022.

The procedure for development of the drafts of S&G was queried by some delegates during the subsequent Council session. It appears that in some instances the LTC utilized external consultants for the preparation of “zero drafts,”²⁰ and in other instances drafts were prepared by committees of external volunteers. Delegates raised concerns about the lack of information provided about the selection process or identity of those external persons.²¹ Potential inconsistency and procedural integrity of an ad hoc approach had actually been pre-empted as an issue during the 2019 Pretoria workshop, as well as during a 2017 workshop in Berlin where a working group had recommended that the “Authority develop a manual” or “handbook” for an S&G development procedure (ISA Workshop, 2017). “The Pretoria workshop report repeated this proposal, noting that a written procedure for S&G development could incorporate guiding principles including inclusiveness, transparency, effectiveness, relevance and continuous improvement.”²² No such procedure was subsequently developed.

The first tranche of 10 “phase 1” S&G was opened for consultation by the LTC in 2020 and 2021. The LTC received 360 submissions from 32 countries, 1 regional group, eight observers, 13 contractors, and 11 other stakeholder entities.²³ The comments were substantial and contained many suggestions for amendment to the drafts released by the LTC. The LTC released a revised set of the 10 S&G for the ISA's 27^th session in 2022. Member State interventions during that session recorded disappointment at the lack of substantive revisions made by the LTC in response to the consultation feedback (see text footnote 21). In light of the overwhelming number of submissions received, and the concurrent development of Regulations causing duplicative and sometimes contradictory work on the S&G, the Council decided to pause work on the S&G until the Regulations are more stabilized.²⁴ The Council stated that “the phase 1 draft standards and guidelines require in-depth consideration by the Council, as well as review, to ensure consistency with the draft regulations.”²⁵

Since the revised S&G were produced by the LTC in 2022, the draft text of the Exploitation Regulations has undergone significant changes. In 2024–2025 two consolidated texts were released by the Council President and a further revised consolidated text was issued in June 2026.²⁶ A notable trend in these more recent texts has been to remove certain provisions from the Regulations, for them instead to be placed within proposed S&G.²⁷

The 30th session of the Council in 2025 returned to the development of S&G, this time as an independent agenda item. During verbal interventions, the importance of S&Gs within the regulatory framework was reaffirmed, with particular emphasis on the involvement of both the Council and the LTC in their formulation. A request was made to the Secretariat to maintain an updated “living document” listing all S&Gs referenced in the regulations.²⁸ While most countries supported addressing S&Gs concurrently with the Regulations, one State delegation (China) suggested prioritizing the Regulations in the near term, and considering only those Standards that are essential for application preparation and development as part of “phase 1” (see text footnote 21).

The allocation in 2025 by the Council of the S&Gs as a standalone agenda item seemed to indicate renewed emphasis on the importance of these instruments. However, final decisions adopted by the Council in that 30th session did not specify how S&Gs should be progressed. The most pertinent decision of the ISA Council from July 2025, regarding future work on the Regulations (ISBA/30/C/18), simply requests that the Secretariat prepare a draft indicative list of outstanding issues based on the discussions held by the Council during that session. This seems likely to include the S&Gs, though they are not explicitly mentioned in that decision, nor in any of the 30th session's outcome documents.

Two key take-aways from the above examination of the history of S&G development at the ISA are as follows:

• Whilst Council members have consistently emphasized that S&G are an essential component of the regulatory framework, it is notable from tracking the evolution of the S&G concept that the Council has never formally adopted any decision regarding their scope or legal standing. The 2019 LTC report that summarized the outcomes of the Pretoria workshop has often been cited as evidence of the Council's intent, and used in lieu of a formal Council decision.²⁹ But the notional procedure and underpinning principles for S&G in fact evolved from a combination of ISA Secretariat papers, the 2019 Pretoria workshop, and the LTC's report to Council of the workshop outcomes. Council leadership in relation to S&G could avoid leaving the process vulnerable to ad hoc approaches, inconsistent drafting practices and uncertainty about institutional roles.
• The status of S&G development is that the ISA has 10 now-outdated draft S&G documents. These were noted by Council as unsatisfactory in substance. They were produced in 2020–2022, were never finalized, and are now substantially out-of-step with the latest iteration of the Regulations. The learning here may be that the development of S&G requires meaningful consultation, is resource-intensive, and cannot be done in isolation from the Regulations.

3.1 The phased approach to S&G development

The LTC's 2019 report, based on the Pretoria workshop paper, proposed three phases in which S&G should be developed—

• Phase 1: S&G deemed necessary to be in place by the time of adoption of the draft Exploitation Regulations,
• Phase 2: S&G deemed necessary to be in place before the receipt by the ISA of the first application for a plan of work for exploitation, and
• Phase 3: S&G deemed necessary to be in place before commercial mining activities commence in the Area (which can be interpreted as being the trigger point known as “Commercial Production,” which takes place when a contractor reaches an agreed quantitative threshold of mineral extraction, after the award of an exploitation contract).

In June 2021, the Republic of Nauru triggered the so-called “2-year rule” under Section 1, Paragraph 15 of the 1994 Agreement relating to the implementation of Part XI of UNCLOS. This provision allows a sponsoring State of an ISA contract to request that the ISA complete the adoption of regulations necessary for exploitation within 2 years, after which the ISA must consider an application for a plan of work even if the regulations remain incomplete. Nauru's invocation, made on behalf of its sponsored contractor, Nauru Ocean Resources Inc. (a subsidiary of The Metals Company), set a July 2023 deadline for the ISA to finalize the Exploitation Regulations.³⁰ This not only creates a political inflection point for the ISA, but also effectively collapses the ISA's proposed three-phase approach to S&G. The original sequencing presumed a gradual build-up of subsidiary instruments aligned with regulatory milestones: adoption of the Exploitation Regulations, receipt of the first application, and commencement of mining. However, with the application window now open, the distinction between Phases 1 and 2 has been overtaken by events—and Phase 2 could now pre-date Phase 1. Phase 3 may follow rapidly if an application is approved. Thus, the majority of the S&G need be adopted contemporaneously with each other (and with the Regulations; Phase 1). If there are matters that could be deferred to a time period between the adoption of the Regulations and the commencement of Commercial Production by a contractor, these can be placed in a subsequent Phase 2. However, comprehensive regulatory certainty is likely required for both the ISA and investors to assess the viability of an exploitation contract.

4 Scope of the analysis

The evolving draft Exploitation Regulations text contains a proliferation of references to S&G. This reflects two approaches taken by the Council in its recent negotiations: (1) An exercise in streamlining what has become a lengthy text (300+ pages), seeking to move extraneous detail out of the regulations and into the S&G; and (2) a tendency to relegate contentious or complicated areas of the Regulations to the S&G, deferring discussions to a future time. Recent examples of this can be seen in relation to thematic topics like monopolization, equalization in the payment regime for Contractors, and effective control of Contractors by the sponsoring State. The proposals for the draft Regulations as of June 2026, are to refer to these concepts briefly in the Regulations, and to set the relevant detailed binding definitions and rules via Standards.³¹

In March 2025, the Secretariat published a draft list of 42 S&Gs referenced in the 2025 draft text. During the subsequent Council session, some Council delegates queried whether that was a comprehensive list (see text footnote 21). We therefore undertook our own review of the June 2026 draft regulations to identify every explicit reference to a Standard or Guideline that the regulations assume will be developed. Where multiple provisions refer to the same subsidiary instrument, we have treated them as a single S&G. Conversely, where a single provision contemplates S&Gs being developed for different issue areas, these have been recorded separately. Inevitably, some references require subjective interpretation of whether they are envisaged as a standalone instrument or can be assumed to be part of a broader S&G. The figures presented should therefore be understood as the minimum number of subsidiary instruments currently referenced.

To assist analysis, each identified S&G was assigned a category based on its functional regulatory purpose. During the categorization, five broad categories emerged—environmental protection, financial matters, procedural clarity, operational issues and institutional arrangements. Some S&G inevitably overlap various categories but have been assigned a category closest to its primary purpose.

Table 1 lists the 58 Standards and Guidelines referenced in the 2026 draft text. These comprise 14 S&G on environmental matters, nine on financial terms of the contract, nine on institutional matters, 16 on operational aspects and 10 on procedural issues. Environmental matters are coded in green, financial matters in blue, institutional matters in pink, operational issues in orange and procedural issues in gray. The distribution demonstrates that S&G will be required across the spectrum of the regulatory regime. Asterisks denote that there is a draft S&G document developed by the LTC on this topic in 2020–2022, which could form a useful basis for developing the required S&Gs though would need updating.³²

Table 1. Lists the S&Gs referenced in the FRCT.

5 What will standards include?

As noted above, the ISA S&G are envisioned to provide regulatory clarity and detail to assist implementation of UNCLOS and the Regulations. As such, S&G play an increasingly crucial role within the composite regulatory regime for governance of deep seabed mining in the Area, alongside the Exploitation Regulations themselves. The latest draft Regulations text envisages that Standards in particular will answer fundamental questions relating to, e.g., assessment of exploitation applications, delineation of environmental obligations, clarification of the financial regime for exploitation, and institutional workings of the ISA. The following are five examples of Standards—one from each category—that illustrate the significance of these subsidiary instruments.

5.1 Development and implementation of environmental threshold values and indicators [environmental]

The draft Exploitation Regulations refer to different gradations of decisions for varied thresholds of environmental harm. These terms include “serious harm,” “harmful effects,” and “effective protection.” The regulation-by-regulation negotiations over preceding years have indicated some confusion or disagreement between member States as to use of these respective terms and how thresholds will be set. The Council has also yet to discuss in any length or detail the definition or criteria for each of these terms, or to tie them in with specific and measurable thresholds—which are to be contained in Standards [as referenced in, e.g., draft Regulations 13(9), 38(2), 45(2), 48bis (2), etc.].

Since 2022, the Council tasked the LTC via expert working groups to establish such thresholds.³³ The working groups are composed of scientific specialists, with each working group examining different impacts of mining impacts, including toxicity, noise and light pollution, turbidity and sediment resettlement. Preliminary outputs from these groups underscore two critical impediments to progress. First, there is a persistent lack of empirical data, e.g., regarding baseline conditions and resilience, which precludes informed quantification of thresholds. Second, the absence of clear policy guidance from the ISA has left technical experts without a normative framework to determine how thresholds should be defined, applied, or interpreted within the broader regulatory regime (International Seabed Authority, 2025). The Council have also clarified that in addition to the initial working groups, there will need to be additional topics and groups, e.g., on habitat removal (Pickens et al., 2024). As such, progress on these thresholds at the crux of the ISA's regime could be described as nascent but impeded.

Clarity on these issues is key, because one of the foremost policy decisions to be made through the Exploitation Regulations is the levels of environmental harm that can or cannot be permitted during exploitation of the Area. Agreement on this fundamental question by the Council has been deferred through its relegation to S&G development.

5.2 Insurance [financial]

The President of the Council noted in the Regulations negotiating text that “several delegations have suggested that the details of insurance coverage should be set out in a Standard. Many delegations have also emphasized the need for a detailed analysis and discussion of the liability regime, including insurance… It has been suggested that the specific requirements for coverage be addressed in a Standard.”³⁴ The negotiations thus far suggest that insurance will be relied upon by the ISA as a crucial part of the liability and compensation scheme for harm arising from exploitation in the Area (Pickens et al., 2024). Open questions remains as to, for example: what type of insurance (would self-insurance be permitted?), what it would cover (general liability, environmental impairment liability, protection and indemnity for vessels and/or machinery, employer's liability, business interruption and emergency response?), and what liability caps may be permitted (Pickens et al., 2024). In the past, Council members requested the LTC and the Secretariat to provide more technical inputs on the issue of availability and types of insurance, and the role it can or should play in the ISA regulatory regime. The ISA Secretariat advertised for a consultant to draft a Standard on insurance obligations in 2022³⁵; but, there has been no update on this since. The insurance requirements the ISA chooses may not be currently available on the market, and where offered may require high up-front expenditure. So the Standard on insurance has implications as to whether or not exploitation in the Area is viable, as well as whether third parties at risk of harm from the activities can access appropriate protection. It is therefore another decisive element of the finalized regime deferred to the Standards [see, e.g., draft Regulations 13(3) and 36 in the Further Revised Consolidated Text. Rev 3 of June 2026].

5.3 Test mining and pilot mining [operational]

The ISA's Exploration Regulations contemplate that contractors may test mining equipment and collection systems before proceeding to commercial recovery or full-scale mining. While test mining has already been conducted by a few ISA exploration contractors, the exploration regime in relation to test mining is recommendatory in nature and not legally binding (both as to whether or not test mining takes place at all, and as to specific procedures to follow in planning and carrying out such tests). The negotiations on the Exploitation Regulations have identified a need for member States collectively to clarify and harmonize within the regulatory framework various aspects of test mining under an exploration contract. A new regulatory step has also been proposed, called “pilot mining,” that would take place subsequent to test-mining, under an exploitation contract prior to commencement of commercial production. This premise has given rise to questions regarding: the precise definition of a test mine or a pilot mine, when and at what scale such tests or pilots would be required and whether there may be exemptions, the procedure around the carrying out of such tests or pilots including ISA authorization to proceed with a test or pilot mine, and how the outcomes of these test or pilot should inform ISA decision-making. An ISA Council working group is working toward solutions to these questions.³⁶ Many of the details will likely be covered by Standards. Test mining and pilot mining will provide crucial empirical information to verify operational capabilities and environmental predictions. As such, detailed requirements for test mining and pilot mining is a pivotal element of the ISA's regulatory regime, whose substance awaits articulation through the Standards.

5.4 Stakeholder participation [procedural]

As an institution seeking to represent humankind as a whole, the importance of the ISA's approach to consultation and participation in its decision-making cannot be overstated (Ardron et al., 2023). At different points in the ISA's recent history, the topic of stakeholder participation in ISA decision-making has been the subject of (i) a draft but never completed ISA institutional policy,³⁷ (ii) intersessional work to streamline stakeholder consultation provisions within the draft Exploitation Regulations,³⁸ and (iii) disparate discussions during Council sessions in negotiating the text of specific Regulations that refer to stakeholders. None of these has led to a formal or final set of rules to govern the ISA's interaction with its stakeholders. Currently, the ISA's approach relies on evolving practice rather than established rule, which some stakeholders have noted lacks sufficient transparency.³⁹

The 2026 draft Regulations text has a provision standardizing the stakeholder consultation requirements of a contractor, but no provisions setting out the ISA's own consultation obligations. ISA stakeholders are left with little guidance or rights at the ISA relating to public participation, including aspects such as access to information, timelines or modalities for engagement, identification of stakeholders, selection of experts, criteria or procedure for incorporating feedback into decision-making processes. Nor are there avenues for access to justice where stakeholders' views are not sought or taken into account in the ISA's decision-making (Pickens et al., 2024). For a regulator acting as a custodian of the common heritage of humankind and taking globally significant decisions about environmental impact, the absence of rules or policies about how it engages its constituency in decisions that affect them is a critical gap in its governance regime, which is envisioned to be elaborated in the form of a Standard.

5.5 Compliance committee [institutional]

The Council has been discussing for some time the establishment of a Compliance Committee as part of its regulatory architecture under the draft Exploitation Regulations.⁴⁰ The intention is to create or designate a mechanism that is subsidiary to, and more agile and specialized than the Council, to monitor and assess contractor compliance with their environmental, operational, and reporting obligations in the contract and Regulations. Discussions have focused on the Committee's mandate, composition, and relationship to other organs of the ISA, particularly the LTC, and the Secretariat's inspectorate. While many delegations support the creation of an independent and technically competent body to enhance oversight, others have raised concerns, e.g., about duplication, cost, legal authority. There have been various State-led proposals as to Compliance Committee constitution, each conflicting with the others. At negotiations during the ISA's 2025 sessions, there seemed to be convergence toward a compromise with States parties engaged in the discussion generally agreeing to the establishment of a Compliance Committee as a subsidiary organ of the Council (see text footnote 21). But the functions, powers and relationships with other ISA bodies make the Compliance Committee a contested but pivotal element in the ISA's evolving governance framework. The development of Standards to operationalize the Compliance Committee therefore also faces significant pressure to meet divergent expectations. No work has commenced on such Standards and neither has the scope of its content been discussed.

We can surmise that Standards governing the Compliance Committee could specify its operational procedures (including meeting modalities and decision-making protocols). Standards might also establish the ISA's approach to compliance and enforcement, and define the scope of compliance reviews, criteria for triggering investigations, modalities for contractor engagement, evidential requirements and procedure and triggers for use of legal powers. Standards may also outline inspection protocols, reporting formats, internal and external information-sharing arrangements, confidentiality provisions, and escalation pathways to the Council. The ISA currently lacks a compliance procedure (Lily and Chakraborty, 2025). Standards on compliance therefore seem likely to involve substantive detail and regulatory complexity.

6 Conclusion and recommendation

The threat of mining in the area outside of the framework of the ISA may apply new pressure on the ISA to adopt the RRPs for exploitation. However, any new timelines for the adoption of the regulations cannot overlook the volume and complexity of work that remains to develop the requisite S&G alongside them. This paper shows:

• The S&G framework has developed through technical workshops and LTC reports since 2019, but key elements—including scope, legal status, and development procedures—have not been formalized through Council decisions, creating procedural uncertainty;
• the number of S&G required (including at least 57 specifically requiring legally binding Standards);
• slow pace of progress to date, with only 10 draft S&G documents prepared between 2020 and 2022, which are now out-of-step with subsequent iterations of the Regulations; and
• the critical importance of the content of S&G to the required regulatory regime for the Area.

Taken together, these findings demonstrate the volume of S&Gs yet to be developed, coupled with the absence of a Council-agreed institutional framework to develop, prioritize and adopt them. They also illustrate the extent to which the operationalization of the exploitation regulations depends on the parallel development of their subsidiary instruments.

Against this backdrop, the time is ripe for the ISA's Council to take leadership over S&G. The mantra “nothing is agreed until everything is agreed”⁴¹ is much cited, but the Council has not crystallized the extent to which it applies to technical, operational, or procedural elaboration subsidiary to the Regulations. In any event, learning from early drafting attempts, it seems clear that: the interrelationship between the Regulations and the S&G makes it impossible to address them in silos or adopt them independently. And if core regulatory precepts are to be included in Standards, then the same level of attention and resources that the draft Regulations have received at the ISA need to be applied to the Standards. The ISA is a more effective institution if it sets realistic timelines for its members and for its stakeholders. It is therefore recommended that the Council develop with some urgency a plan for the S&G—or at least the Standards given their legally binding role—that is “SMART,” i.e., Specific, Measurable, Achievable, Relevant, and Time-bound, with clear allocation of responsibilities and budget.⁴² In order to address the gaps in S&G development identified in this paper, we suggest the following content for such a plan or roadmap.

• (1) An accurate, complete, Council-agreed list of Standards (or S&G).
• (2) A decision of the Council on the phasing of S&G, which applies objective criteria and justification for the phase-allocation, such that:
• (3) Formalization of a process for S&G development, including public consultation periods and procedures, and delineation of the role and accountabilities of the Secretariat, the LTC, the Council and any external personnel in drafting, reviewing and adopting the S&G.
• (4) Agreement to prioritize Standards, with Guidelines being drafted, reviewed and adopted on a rolling basis.
• (5) Agreement to review and update the list of Standards every ISA session, based on the ongoing work of the Council, including the informal intersessional working groups.
• (6) Clear timescales, deadlines, and allocation of resources and responsibilities for each S&G.
• (7) Agreement that S&G will be included as an agenda item for each Council meeting, with a direction for a representative of the responsible organ (e.g., the Chair of the LTC or the Secretary-General) to provide a report back on progress, against the plan and its SMART indicators.

By embracing a structured and transparent approach to subsidiary instrument development, the ISA, in particular, its Council in exercising its rule-making and supervisory function, can show its credibility as a global regulator and steward of the common

heritage of humankind. A well-articulated plan for S&G, anchored in scientific evidence, inclusive consultation, and institutional coordination, would not only support the effective implementation of the Exploitation Regulations but also demonstrate the ISA's commitment to due process, precaution, and accountability. In doing so, the ISA has the opportunity to set a precedent much-needed in the current climate, for how complex, high-stakes resource governance can be undertaken responsibly and with legitimacy via multilateral process.

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Footnotes

Edited by: Sarah Lothian, University of Wollongong, Australia

Reviewed by: Kerstin Kröger, Joint Nature Conservation Committee, United Kingdom

Kristine Elfrida Dalaker, University of Wollongong—Innovation Campus, Australia

Footnotes

UNCLOS Art. 136. Although UNCLOS refers to the “common heritage of mankind,” we use the term “humankind” in this article, as the gender-neutral formulation now prevalent in international legal writing and practice. The substitution is not intended to imply any departure from the treaty text.

UNCLOS Arts. 140 and 157(1), 145, 140(2), and 150–151.

UNCLOS Arts. 162(2)(o), 153 and Annex III. The ISA's Council has repeatedly stated that that the exploitation in the Area cannot be carried out in the absence of the relevant RRPs (e.g., in decisions ISBA/28/C/24 and ISBA/28/C/25, from July 2023, accessible here: http://isa.org.jm/sessions/28th-session-2023/).

“S&G” in this paper refers to Standards and Guidelines when they are addressed collectively, but “Standard(s)” and “Guideline(s)” will be used where individually there is a reference to a specific instrument, or where there is discussion of differences between these two types of subsidiary instruments.

For example, ISA contractors who have written repeatedly to the ISA urging clarity on the legal framework for mining, see letters of January 2025 here: https://isa.org.jm/wp-content/uploads/2025/03/Letter-of-contractors-14-January-2025.pdf and March 2026 here: https://isa.org.jm/wp-content/uploads/2026/03/20260303_GSR-Response-to-ISA-Delay-Regs.pdf. The CEO of the parent company of two ISA exploration contractors also published a statement bemoaning the perceived delays in the adoption of the Exploitation Regulations, here: https://metals.co/ceo-statement-on-isa-and-usa/. The lack of regulatory clarity has also been the subject of academic commentary, see: Pickens et al., 2024; Pecoraro et al., 2024. A number of ISA Member States have also expressed concern about the lack of clear legal rules for mining, evincing policy positions in favor of a moratorium or precautionary pause until such time as the relevant regulations are robust and in place, see Singh et al., 2025—in particular Table 2.

Deep Seabed Mining: Revisions to Regulations for Exploration License and Commercial Recovery Permit Applications, National Oceanic and Atmospheric Administration, 01/21/2026, https://www.federalregister.gov/documents/2026/01/21/2026-01044/deep-seabed-mining-revisions-to-regulations-for-exploration-license-and-commercial-recovery-permit.

https://oceanservice.noaa.gov/deep-seabed-mineral-resources/deep-seabed-mining/.

For example, interventions by States at the ISA Council's March 2026 meeting, from the authors own contemporaneous observations (summarized here: https://enb.iisd.org/international-seabed-authority-isa-council-31-1-summary). See also the contractor letters and statements, cited at text footnote 5.

Draft Regulations (DRs) 45, 94 and 95 1bis, Further Revised consolidated text: Draft regulations on exploitation of mineral resources in the Area, ISBA/31/C/CRP.1/Rev.2, 15 February 2026. Please also see the ISA's website for more information and links to historical documents https://isa.org.jm/the-mining-code/standards-and-guidelines/.

DR 94 1bis, Further Revised consolidated text: Draft regulations on exploitation of mineral resources in the Area, ISBA/31/C/CRP.1/Rev.2, 15 February 2026.

Draft regulation 95, Issuance of Guidelines, paragraphs 3 and 4, ISBA/30/C/CRP.1, 10 January 2025.

Development of Standards and Guidelines for activities in the Area—Note by the Secretariat, 12 June 2026 Advance Unedited Version [ISBA/31/LTC/8] https://isa.org.jm/wp-content/uploads/2026/06/ISBA_31_LTC_8_AUV.pdf.

The authors provide an updated note, from their own observations from in-person attendance and from their own contemporaneous note-taking (copies available upon request), that contrary to the position we evince here, and to the Council's own repeated mantra of “nothing's agreed until everything is agreed,” in March 2026 two delegations proposed that the Regulations should be agreed first and separately, before the Council moves to work on Standards. Such a proposal was also foreshadowed in Xu et al. (2025). From authors' own observations and notes, several other delegations expressed unwillingness to take that approach at the March 2026 Council meeting.

Supra text footnote 13.

https://www.isa.org.jm/wp-content/uploads/2022/06/isba_25_c_wp1-e_0.pdf.

Decision of the Council of the International Seabed Authority relating to the reports of the Chair of the Legal and Technical Commission, ISBA/25/C/37, https://isa.org.jm/wp-content/uploads/2022/06/c37-e.pdf.

Workshop on the Development of Standards and Guidelines for the Mining Code. https://isa.org.jm/events/workshop-on-the-development-of-standards-and-guidelines-for-the-mining-code/.

This seems to be the original conceptualization of the role that “Standards” could play in the ISA Regulations, in the 2015 Secretariat Report that was a precursor to the zero draft of the regulations: “Developing a Regulatory Framework for Mineral Exploitation in the Area” (https://www.isa.org.jm/wp-content/uploads/2022/04/Report-2015.pdf)—see page 43.

The workshop report is available online here: /https://www.isa.org.jm/wp-content/uploads/2022/06/pretoria_workshop_report-final.pdf [accessed 22 June 2025].

A “zero draft” is a term used in international negotiations for the initial un-negotiated text of a draft instrument, prepared by the secretariat or facilitator, to provide a starting point for discussion. A call for proposals for the preparation of S&Gs in December 2021 suggests that a legal consultant was sought to prepare first drafts of 23 S&Gs https://www.isa.org.jm/news/deadline-call-proposals-preparation-phase-two-standards-and-guidelines-activities-area/.

Authors' own contemporaneous notes taken during the session—copy available upon request.

Page 17, Workshop report, Development of Standards and Guidelines for activities in the Area, Pretoria, 13–15 May 2019 https://www.isa.org.jm/wp-content/uploads/2022/06/pretoria_workshop_report-final.pdf.

ISA, Submissions received with respect to the stakeholder consultations on Standards and Guidelines, accessed June 15, 2023, Submissions received with respect to the stakeholder consultations on Standards and Guidelines—International Seabed Authority (isa.org.jm).

Statement by the President of the Council on the work of the Council during the first part of the twenty-seventh session, 12 April 2022 [ISBA/27/C/21], available here: https://isa.org.jm/wp-content/uploads/2022/06/ISBA_27_C_21-2205582E.pdf; also authors own in-person observations and contemporaneous notes of the ISA's 27th session (copies available upon request). See also the Secretariat's Note of June 2026, supra. text footnote 13.

Paragraph 3, Decision of the Council of the International Seabed Authority relating to the reports of the Chair of the Legal and Technical Commission, ISBA/27/C/44.

Further Revised Consolidated Text (Revision 3), ISBA/31/C/CRP.1/Rev.3 https://isa.org.jm/wp-content/uploads/2026/06/Further-Revised-Consolidated-Text-Rev.3-ISBA-31-C-CRP.1-Rev.3.pdf.

Revised suspense document, Elements to be relocated from the draft regulations on exploitation of mineral resources in the Area to the Standard and Guidelines and other rules, regulations and procedures of the Authority, ISBA/30/C/CRP.2.

See paragraph 17, Statement of the President on the work of the Council of the International Seabed Authority during the first part of the thirtieth session, ISBA/30/C/5.

See workshop report https://www.isa.org.jm/wp-content/uploads/2022/06/pretoria_workshop_report-final.pdf and ISA Secretariat note https://www.isa.org.jm/wp-content/uploads/2025/03/Draft-list-of-Standards-and-Guidelines-ISBA30.pdf.

See discussion on the 2-year rule examining the divergent readings of section 1(15), notably that while one interpretation suggests the Council must “consider” an application after the 2-year period, another stresses that this does not impose any obligation to approve or allow exploitation without a completed regulatory framework (Singh, 2022).

See the reports on each thematic topic, here: https://isa.org.jm/session-31-council-part-2-july-2026/. It is possible that this approach follows a similar pattern in other multilateral processes, where difficult issues are deferred to another, subsequent negotiation in order to secure initial basic agreement on high-level text (see, e.g., Cao et al., 2026, in relation to the BBNJ Agreement).

See https://isa.org.jm/the-mining-code/standards-and-guidelines/. Also Kröger et al., 2025, Table 3.

Decision of the Council of the International Seabed Authority relating to the development of binding environmental threshold values, ISBA/27/C/42, https://isa.org.jm/documents/isba-27-c-42/.

Comment box from the President, Section 6, DR 36—Insurance, revised consolidated text.

https://isa.org.jm/news/deadline-extended-calls-proposals-consultancy-assess-potential-contribution-isa-promoting-2/.

See the “Test mining” tab on the ISA webpage for the first part of the 30th session of the ISA Council, here: https://isa.org.jm/session-30-council-part-1-march-2025/. Also the proposal on test mining by Germany, Belgium and China https://www.isa.org.jm/wp-content/uploads/2025/07/joint-proposal-by-Germany-Belgium-and-China_final.pdf and https://www.isa.org.jm/wp-content/uploads/2025/07/20250718-Openissues-TM-PM_rev_clean.pdf.

Communications and Stakeholder Engagement Strategy, International Seabed Authority, https://www.isa.org.jm/wp-content/uploads/2022/03/Draft_Comms_and_Stakeholder_Engagement_Strategy.pdf.

Outcomes of the informal group discussing Standardisation of Stakeholder consultation, https://www.isa.org.jm/wp-content/uploads/2023/10/Outcomes-discussion-standardisation-stakeholder-consultations.pdf.

See statements by international experts (https://unece.org/sites/default/files/2024-03/WGP27_PPIF_session_Statement_on_ISA_by__Experts_0.pdf and https://unece.org/sites/default/files/2024-07/Item5_PPIF_IV_General_Discussion_ISA_Hannah-Lily_Statement.pdf); and UN OHCHR (https://unece.org/sites/default/files/2024-07/AC_WGP-28_Item5_PPIF_IV_ISA_OHCHR-statement.pdf) accessible from the landing page here: https://unece.org/environmental-policy/events/twenty-eighth-meeting-working-group-parties-aarhus-convention; and Ardron et al. (2023), and Morgera and Lily (2022).

See for example the “ICE mechanism” tab on the ISA webpage for the first part of the 30th session of the ISA Council, here: https://isa.org.jm/session-30-council-part-1-march-2025/, and for the second part of the 29th session of the ISA Council here: https://isa.org.jm/session-29-council-part-2-july-2024/.

Paragraph 4, Decision of the Council of the International Seabed Authority on a timeline following the expiration of the two-year period pursuant to section 1, paragraph 15, of the annex to the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, ISBA/28/C/24, https://isa.org.jm/wp-content/uploads/2023/07/2314552E.pdf.

SMART indicators are a commonly used project management tool [Doran, Management Review 70 (1981)].