Governing the Deep Seabed: Progress and Pressure at the First Part of the 31st Annual Session of the ISA Council

The first part of the 31^st annual session of the International Seabed Authority (“ISA”) Council was held in Kingston, Jamaica from 9 to 19 March 2026. After more than a decade of negotiations, mounting geopolitical pressure and growing commercial impatience have injected renewed urgency into the finalisation of the exploitation regulations.

At the heart of the Council’s session lay a defining tension: whether the prospect of unilateral seabed mining — most notably signalled by recent action from the United States — should accelerate the adoption of the exploitation regulations, or instead reinforce the need for a cautious, science-led approach grounded in the ISA’s environmental mandate. This tension was not confined to high-level political statements; it permeated the Council’s deliberations.

This insight examines how these competing imperatives — urgency versus precaution and commercial certainty versus regulatory legitimacy — shaped the dynamics of the session. It further analyses key areas of progress and persistent divergence in the draft exploitation regulations.

The Unilateral Action Threat and Geopolitical Context

The United States’ Executive Order dated 24 April 2025¹ has catalysed different reactions among ISA members, placing both the Council and the ISA at a critical juncture. On one side, China and Russia cautioned that unilateral action risks undermining the ISA’s mandate, with China further arguing that the timely adoption of exploitation regulations is essential to restoring confidence in the ISA’s authority. On the other, France emphasised that governance of the seabed falls within the ISA’s exclusive competence, warning that any unilateral activity in the Area would contravene international law and urging that progress remain grounded in robust scientific evidence — a position echoed by several other member states.

At the same time, the U.S. licensing framework presents a tangible, if controversial, pathway toward commercial deep-sea mining. After more than a decade of protracted negotiations within the ISA, contractors and private actors are increasingly frustrated by the absence of regulatory clarity and a defined route to exploitation. While there is broad agreement that regulations must not be rushed and should remain science-based, the ISA must also reckon with the commercial reality: any viable framework must both provide regulatory certainty now and demonstrate that future amendments, guidance, and rulemaking for this emerging industry can be delivered in a timely and predictable manner.

This demand for certainty must also underscore the Council’s ongoing negotiations of the draft exploitation regulations. In discussions on the conditions for commencing exploitation, several delegations supported requiring that commercial extraction proceed only where scientific evidence demonstrates that activities can ensure the effective protection of the marine environment. Many also advocated making the adoption of standards and guidelines a precondition for exploitation, given that key components of the regime — including environmental impact assessments — are elaborated in these subsidiary instruments rather than in the regulations themselves.

However, this approach introduces an additional layer of temporal uncertainty. Even after the exploitation regulations are finalised, contractors may still face an indeterminate delay before commercial operations can begin, pending the development and adoption of the necessary standards and guidelines. This risks perpetuating the very uncertainty that has driven interest in unilateral alternatives, thereby intensifying the strategic and institutional pressures currently confronting the ISA.

Development in the Negotiations of the Draft Exploitation Regulations

During the meeting, the Council continued negotiations of the draft exploitation regulations, structured around four thematic areas consistent with the approach adopted at its 30th session: environmental matters; financial matters; regulatory, procedural, and institutional issues; and governance. Progress was uneven, but several areas saw meaningful advancement.

The financial architecture underpinning the exploitation regime was a central focus of the session. The Council broadly endorsed the equalisation mechanism set out in regulation 64 bis, which is designed to ensure that the effective tax burden on deep-sea mining remains comparable to that of land-based mining, irrespective of tax concessions granted by sponsoring states. This provision is intended to function as an anti-avoidance safeguard, limiting the risk of contractors engaging in “forum shopping” to secure more favourable fiscal conditions.

The Council also engaged in substantive discussions on profit-sharing arrangements for the transfer of mining rights. Many delegations supported an approach analogous to capital gains taxation in terrestrial mining sectors, grounded in the principle that resources of the Area constitute the common heritage of humankind. At the same time, proposals to internalise environmental externalities — reflected in draft provisions such as regulations 64 ter and quater — prompted more cautious debate. While these provisions aim to introduce additional royalty mechanisms linked to biodiversity loss and ecosystem degradation, several delegations questioned whether the current scientific evidence base is sufficiently robust to support their implementation.

Divergences persisted regarding the scope and design of financial incentives. A number of delegations underscored that any such incentives must remain firmly aligned with the United Nations Convention on the Law of the Sea (“UNCLOS”), which frames them primarily as tools to promote technology transfer and capacity-building for developing states, rather than as broad commercial subsidies.

Beyond financial matters, the session advanced discussions on key governance mechanisms. The Council expressed broad support for establishing a compliance committee through a Council decision, with many delegations favouring this approach over codifying its mandate directly within the regulations. This reflects a preference for institutional flexibility, though delegates emphasised the need to clearly delineate responsibilities between the compliance committee and the Legal and Technical Commission (“LTC”), particularly to avoid duplication in inspection functions.

Inspection powers themselves proved contentious. A number of delegations argued that unannounced inspections are essential to ensure credible oversight, as they reduce the risk of operators concealing non-compliance. Others, however, raised concerns regarding due process and the potential operational implications for contractors.

On issues of market concentration, the Council broadly converged on the need to include objective thresholds within the regulations to identify and prevent monopolisation or excessive market control. Importantly, there was general agreement that such safeguards should extend beyond individual contractors to encompass parent companies, subsidiaries, and affiliated entities. In this context, a Netherlands non-paper proposing joint and several liability for parent companies gained traction as a means of addressing accountability gaps created by complex corporate structures. While widely supported in principle, questions remain regarding its legal feasibility and its interaction with sponsoring state obligations under UNCLOS.

A notable contextual development was the entry into force of the Biodiversity Beyond National Jurisdiction (“BBNJ”) Agreement in January 2026. Delegates highlighted the importance of ensuring coherence and coordination across emerging ocean governance frameworks. At the same time, the Council was clear that enhanced cooperation must complement rather than dilute the ISA’s mandate. Reflecting this cautious approach, the Council deferred adoption of a formal decision on BBNJ cooperation until its July 2026 session, recognising that the institutional architecture of the BBNJ regime is not yet fully operational.

Next steps

The first part of the 31st annual session closed with meaningful but incomplete progress. The Council endorsed a request to the LTC to consolidate and revise the list of standards and guidelines, identify those to be ready at the time of adoption of the exploitation regulations, and develop a clear roadmap and timeline — with a report expected before the July 2026 session. The path to finalised and adopted exploitation regulations remains contested, but the session demonstrated the Council’s commitment to structured intersessional work and a comprehensive, balanced regulatory framework for the governance of the deep seabed.

¹“Unleashing America’s Offshore Critical Minerals and Resources”

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.