An Environmental Management Strategy for the International Seabed Authority? The Legal Basis

Transcription

1 The International Journal of Marine and Coastal Law 30 (2015) THE INTERNATIONAL JOURNAL OF MARINE AND COASTAL LAW brill.com/estu An Environmental Management Strategy for the International Seabed Authority? The Legal Basis Aline Jaeckel* Faculty of Law, University of New South Wales, Sydney, Australia Abstract The number of contracts granted by the International Seabed Authority (ISA) to explore minerals on the seabed beyond national jurisdiction has increased greatly in recent years and commercial exploitation is scheduled to start in the near future. A core challenge is to establish adequate environmental protection measures, procedural safeguards, and institutional arrangements to balance commercial mining with environmental protection. This is especially important given the urgent need to utilize existing legal and institutional frameworks, such as the ISA, to protect marine biodiversity in areas beyond national jurisdiction. This article analyses the ISA s mandate to adopt a comprehensive environmental management strategy. It outlines the legal basis of eight potential components of such a strategy. Although several of these have been endorsed by the ISA on a temporary or ad hoc basis, substantial gaps remain. An environmental management strategy could provide for systematic environmental safeguards during both exploration and exploitation for minerals. Keywords International Seabed Authority deep seabed mining marine environment Exploration Regulations marine biodiversity environmental impact * This article draws on research for a briefing note prepared by the author during an internship at the ISA. The author would like to thank Michael Lodge, Rosemary Rayfuse and Sarah Williams for their comments. The content and any remaining errors are the responsibility of the author. aline jaeckel, 2015 doi / This is an open access article distributed under the terms of the Creative Commons Attribution- Noncommercial 4.0 Unported (CC-BY-NC 4.0) License.

2 94 Jaeckel Introduction Over the past two years, the level of interest in deep seabed mining has increased rapidly and significantly after decades of being on hold.1 Two decades after the entry into force of the 1982 United Nations Convention on the Law of the Sea (LOSC), it is becoming crowded in some parts of the seabed beyond the limits of national jurisdiction, the so-called Area.2 Growth in demand for metals, a rise in world metal prices, and advances in mining technology3 have all led to renewed and increasing interest in the prospect of commercially mining deep seabed minerals. The International Seabed Authority (ISA) recently adopted Regulations for prospecting and exploration for three types of marine minerals (Exploration Regulations): polymetallic nodules, polymetallic sulphides, and cobalt-rich ferromanganese crusts, each the focus of one set of Exploration Regulations, adopted in 2000,4 2010,5 and 2012,6 respectively. These developments prompted a sudden increase in the number of applications to the ISA for exploration contracts. Since 2001, 26 applications for contracts to explore these minerals in the Area have been approved. In parallel to this renewed interest in exploration for seabed minerals, the first six of the 15-year exploration contracts for polymetallic nodules will expire in 2016, causing efforts to shift to the exploitation phase to start commercial-scale 1 Statement by the Secretary-General of the ISA, Mr. Nii A. Odunton, at the launch of UK Seabed Resources Ltd. (London, 14 March 2013), available at SG-Stats/NAO-Statement.pdf, accessed 3 September The Area is defined as the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction. United Nations Convention on the Law of the Sea (Montego Bay, 10 December 1982, in force 16 November 1994) 1833 UNTS 3, Article 1(1)(1). 3 A. L. Clark, J. Cook Clark and S. Pintz, Towards the Development of a Regulatory Framework for Polymetallic Nodule Exploitation in the Area (ISA Technical Study: No. 11) (ISA, Kingston, 2013), at pp Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (ISBA/6/A/18, 13 July 2000, as amended by ISBA/19/A/9 and ISBA/19/A/12, 25 July 2013, and ISBA/20/A/9, 24 July 2014). 5 Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area (ISBA/16/A/12/Rev.1, 15 November 2010, as amended by ISBA/19/A/12, 25 July 2013 and ISBA/20/A/10, 24 July 2014). 6 Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area (ISBA/18/A/11, 27 July 2012, as amended by ISBA/19/A/12, 25 July 2013).

3 Strategy for the International Seabed Authority? 95 mining. Consequently, the ISA began the considerable task of developing a regulatory framework for the exploitation of polymetallic nodules.7 Given both the increase in exploration activities and the pending shift of focus from exploration to exploitation, a core challenge for the ISA is to establish a system of adequate environmental protection standards and measures, together with relevant procedural safeguards and institutional arrangements. Indeed, in the context of its transition to commercial-scale mining, the ISA is undertaking a stakeholder engagement process. Responses to the first stakeholder survey were published in June 2014 and presented opinions from a wide array of public and private stakeholders on, inter alia, the terms and obligations of the ISA and individual contractors with respect to environmental management of the future recovery of minerals.8 The survey highlights the need for the ISA to elaborate specific and detailed environmental protection components of its work. Moreover, it serves as a reminder that several environmental measures exceed the capacity of individual contractors and instead require commitment and action by the ISA as a whole. Particularly in light of the increase in the number of exploration contracts being granted, it is necessary to protect the marine environment from cumulative environmental impacts from mining activities9 and to set aside protected zones before minable areas are divided up between contractors. To that end, scientists are calling for a systematic approach to spatial management and zoning of the deep sea 10 to balance economic and environmental interests. Although the ISA has taken considerable steps in implementing its environmental mandate and the Exploration Regulations contain a number of provisions addressing aspects of environmental protection from exploration activities, substantial challenges remain. First, several measures to reduce the environmental impact of seabed mining are missing from the Exploration Regulations, such as the need to apply an ecosystem-based approach. Second, the challenge posed by those obligations of the ISA already incorporated in 7 Summary Report of the President of the Council of the International Seabed Authority on the Work of the Council during the Twentieth Session (ISBA/20/C/32, 23 July 2014), paragraph 15; Clark et al. (n 3). 8 Developing a Regulatory Framework for Mineral Exploitation in the Area, Stakeholder Survey (ISA, 2014), available at accessed 3 September C. L. Van Dover, Tighten regulations on deep-sea mining (2011) 470 Nature L. M. Wedding, A. M. Friedlander, J. N. Kittinger, L. Watling, S. D. Gaines, M. Bennett, S. M. Hardy and C. R. Smith, From principles to practice: a spatial approach to systematic conservation planning in the deep sea (2013) 280(1773) Proceedings of the Royal Society of London. Series B. Biological Science , at p

4 96 Jaeckel the Exploration Regulations is to ensure their implementation. For example, which detailed procedural and institutional measures are necessary to facilitate implementation of the precautionary approach by the ISA? These considerations are equally relevant for the exploration and exploitation of seabed minerals. Most importantly, however, measures for the protection of the marine environment are, at present, decided on an ad hoc basis, making them vulnerable especially if commercial pressure to promptly commence the exploitation phase increases. A detailed strategic vision to implement the ISA s environmental obligations during the exploration and the exploitation stages would be instrumental to ensure that appropriate and systematic environmental protection measures are adopted and implemented, in order to conserve the diversity of deep ocean biota and ecosystem functions whilst providing for rational use of mineral resources. In this context, the present article examines the legal competences of the ISA to adopt a comprehensive environmental management strategy applicable to all deep seabed mining activities. It begins with an overview of the ISA and its current challenges with respect to environmental protection, followed by a brief summary of the ISA s general mandate to protect the marine environment. The article then considers the legal basis of eight potential components of an environmental management strategy, drawing upon a range of legal sources, including the LOSC, the 1994 Implementing Agreement,11 the Exploration Regulations, the Advisory Opinion on the Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Seabed Advisory Opinion),12 and principles of international environmental law. The article demonstrates that not only would the ISA s environmental competences permit the adoption of a comprehensive environmental management strategy, but several of the proposed elements have in fact already been endorsed through individual measures. The ISA and Current Challenges Pursuant to Part XI of the LOSC, the ISA is the organisation through which States Parties to the LOSC organise and control activities for the exploration 11 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (adopted by UNGA Resolution 48/263, New York, 28 July 1994, in force since 16 November 1994) 1836 UNTS Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Seabed Disputes Chamber of the International Tribunal of the Law of the Sea, Case No 17, 1 February 2011).

5 Strategy for the International Seabed Authority? 97 and exploitation of mineral resources in the Area.13 As stated in Article 136 and the Preamble to the LOSC, the Area and its resources form part of the common heritage of mankind.14 As such, they are not subject to appropriation but are managed collectively with the aim to share the benefits derived from the common heritage. As the institutional manifestation of this legal status, the ISA is mandated to act on behalf of humankind as a whole and thus to assume stewardship over the Area and its resources.15 The legal status of the Area and its resources influences every aspect of the ISA regime, including the determination of an adequate balance between facilitating mineral mining and protecting the marine environment. The importance of the latter was stressed in the Seabed Advisory Opinion, which confirms the aims to safeguard the uniform application of the highest standards of protection of the marine environment, the safe development of activities in the Area and protection of the common heritage of mankind. 16 In line with these aims, the Advisory Opinion supports an extensive application of international environmental legal principles to all seabed mining activities in the Area. Indeed, as French highlights, much of the stringency of the tone of the Advisory Opinion was influenced by the importance the Seabed Disputes Chamber attached to the common heritage principle.17 The Chamber s focus on environmental protection is particularly relevant, given the recent expansion of exploration activities and the imminence of largescale mineral exploitation. Scientists are warning about the potential of commercial-scale seabed mining to cause severe and wide-spread environmental damage.18 Much of the damage may be long term or irreversible and restoration may, in some areas, be impractical, owing to the very slow rate of substrate reformation after mineral deposits have been removed.19 Overall, knowledge 13 LOSC, Article 157(1). 14 LOSC, Article LOSC, Articles 137, 153(1). 16 Seabed Advisory Opinion (n 12), paragraph D. French, From the Depths: Rich Pickings of Principles of Sustainable Development and General International Law on the Ocean Floor the Seabed Disputes Chamber s 2011 Advisory Opinion (2011) 26 International Journal of Marine and Coastal Law , at p J. Halfar and R. M. Fujita, Danger of Deep-Sea Mining (2007) 316 (5827) Science 987; E. Ramirez-Llodra, P. A. Tyler, M. C. Baker, O. A. Bergstad, M. R. Clark, E. Escobar, L. A. Levin, L. Menot, A. A. Rowden, C. R. Smith and C. L. Van Dover, Man and the Last Great Wilderness: Human Impact on the Deep Sea (2011) 6(7) PLoS ONE e22588, at pp K. J. Mengerink, C. L. Van Dover, J. Ardron, M. Baker, E. Escobar-Briones, K. Gjerde, J. A. Koslow, E. Ramirez-Llodra, A. Lara-Lopez, D. Squires, T. Sutton, A. K. Sweetman and L. A. Levin, A Call for Deep-Ocean Stewardship (2014) 344 (6185) Science ,

6 98 Jaeckel of deep ocean ecosystems is inchoate.20 As the ISA Secretary-General, Nii Allotey Odunton, emphasized in 2013, it is imperative to ensure that adequate measures are in place for the protection of the marine environment. A prerequisite for this is the establishment of an environmental baseline against which to assess the impacts of mining on the marine environment. 21 A noteworthy first step was taken in 2012 with the adoption of the Environmental Management Plan (EMP) for the mineral-rich Clarion-Clipperton Zone in the central Pacific.22 The EMP is a spatial management plan, the first of its kind and an important element in shaping the ISA s environmental mandate. Based on the proposal by several scientists, the EMP, inter alia, designates nine so-called areas of particular environmental interest (APEIs) to be protected from mining.23 However, the EMP is limited to the Clarion-Clipperton Zone, although exploration contracts have already been granted for areas in the Atlantic, Pacific, and Indian Oceans. The UN General Assembly recently invited the ISA to consider developing and approving environmental management plans in other international seabed area zones, in particular where there are currently exploration contracts. 24 In July 2014, the ISA Council encouraged the Legal and Technical Commission (LTC) to follow this suggestion.25 Furthermore, the Council supported a proposal by the Netherlands to include in the future legal framework for nodules exploitation, a compulsory establishment by the Authority of an environmental management plan as a requirement for at p. 697; A. G. Glover and C. R. Smith, The deep-sea floor ecosystem: current status and prospects of anthropogenic change by the year 2025 (2003) 30(3) Environmental Conservation , at p Mengerink et al. (n 19); Van Dover (n 9); Ramirez-Llodra et al. (n 18); C. R. Smith, G. Paterson, J. Lambshead, A. Glover, A. Rogers, A. Gooday, H. Kitazato, M. Sibuet, J. Galéron and L. Menot, Biodiversity, Species Ranges, and Gene Flow in the Abyssal Pacific Nodule Province: Predicting and Managing the Impacts of Deep Seabed Mining (ISA Technical Study: No. 3) (ISA, Kingston, 2008). 21 Report of the Secretary-General of the International Seabed Authority under Article 166, Paragraph 4, of the United Nations Convention on the Law of the Sea (ISBA/19/A/2, 22 May 2013), paragraph Environmental Management Plan for the Clarion-Clipperton Zone (ISBA/17/LTC/7, 13 July 2011). 23 EMP (n 22), paragraph 37(a); for an overview of the development of the EMP, see M. Lodge, D. Johnson, G. Le Gurun, M. Wengler, P. Weaver and V. Gunn, Seabed Mining: International Seabed Authority Environmental Management Plan for the Clarion- Clipperton Zone. A Partnership Approach (2014) 49 Marine Policy UNGA Resolution 68/70, Oceans and the Law of the Sea (27 February 2014), paragraph Draft Decision of the Council of the International Seabed Authority Relating to the Summary Report of the Chair of the Legal and Technical Commission (ISBA/20/C/L.10, 21 July 2014), paragraph 9.

7 Strategy for the International Seabed Authority? 99 granting contracts for exploitation in a designated area. 26 The proposal will be considered by the LTC in Such political support for more comprehensive environmental management efforts, coupled with the need to establish environmental baselines to permit impact assessments before any large-scale mining occurs, create additional momentum for the ISA to implement its environmental mandate. Moreover, the recent call by scientists to enhance stewardship of the deep ocean through precautionary management28 serves as a reminder of the ISA s role in managing the common heritage of humankind. Against this background, the following section discusses the ISA s general obligation to protect the marine environment. General Obligations of the ISA to Protect the Marine Environment The LOSC provides for the development of seabed minerals and for the protection of the marine environment from the impacts of mining and tasks the ISA with striking the balance. Pursuant to LOSC Article 145, the ISA must take necessary measures [...] to ensure effective protection for the marine environment from harmful effects which may arise from activities in the Area, a term defined in the LOSC as referring to exploration and exploitation of the resources in the Area.29 This provision grants the ISA a broad capacity to enact protective measures as it deems necessary. Moreover, the ISA is specifically obliged to adopt rules, regulations and procedures, including for the prevention, reduction and control of [...] interference with the ecological balance of the marine environment, particularly from harmful effects of seabed mining, and for the protection and conservation of the natural resources of the Area and the prevention of damage to the flora and fauna of the marine environment. 30 Thus, the ISA must actively develop and implement environmental protection standards and keep them under review.31 The The Environmental Management Plan in the Regulatory Framework for Mineral Exploitation in the Area Explanatory Note Submitted by the Netherlands (ISBA/20/C/13, 3 June 2014), paragraph Summary Report of the President of the Council of the International Seabed Authority (n 7), paragraph Mengerink et al. (n 19). 29 LOSC, Article 1(1)(3). 30 LOSC, Article 145; see also LOSC, Article 209 and Annex III, Article 17(1)(b)(xii). 31 See also Nodules Exploration Regulations, Regulation 31(1); Sulphides Exploration Regulations, Regulation 33(1); Crusts Exploration Regulations, Regulation 33(1).

8 100 Jaeckel Implementing Agreement emphasizes that this obligation is one of the matters to be given priority consideration between the entry into force of the LOSC and the approval of the first plan of work for exploitation.32 In the context of this broad obligation to protect the marine environment, it is noted that although the Council of the ISA has the competence to adopt new regulations,33 the LTC, a technical advisory body to the Council, must formulate and submit to the Council environmental rules, regulations, and procedures and keep them under review.34 The LTC must make recommendations to the Council on the implementation of such regulations35 and on the protection of the marine environment, taking into account the views of recognized experts in that field. 36 Furthermore, the LTC must prepare environmental impact assessments of activities in the Area37 and make recommendations to the Council concerning a monitoring programme to observe, measure, evaluate, and analyse the risks and effects of pollution caused by such activities.38 The LTC must also ensure that existing regulations are adequate and followed, and coordinate the implementation of the monitoring programme.39 These specific competences are supplemented by incidental powers of the ISA under LOSC Article 157 and section 1(1) of the Annex to the 1994 Implementing Agreement. The general environmental mandate set out in LOSC Article 145 provides for the protection of the marine environment as a whole. The requirement to prevent interference with the ecological balance of the marine environment recognizes the integrated nature of marine ecosystems and includes in the obligation not only the seabed but also the water column, coastal areas, and other parts of the environmental continuum of the oceans. 40 Moreover, it comprises marine flora and fauna, regardless of whether or not they form part of the Area. This is relevant in the context of the ongoing debate over marine genetic resources. The realisation that living organisms in the deep oceans hold commercially promising genetic information has sparked a debate over Implementing Agreement, Annex, section 1, paragraph 5(g). 33 LOSC, Article 162(2)(o)(ii). 34 LOSC, Article 165(2)(f), (g). 35 Nodules Exploration Regulations, Regulation 31(3); Sulphides Exploration Regulations, Regulation 33(3); Crusts Exploration Regulations, Regulation 33(3). 36 LOSC, Article 165(2)(e). 37 LOSC, Article 165(2)(d). 38 See also the section on compliance, monitoring, and enforcement below. 39 LOSC, Article 165(2)(h). 40 S. N. Nandan, M. W. Lodge and S. Rosenne, United Nations Convention on the Law of the Sea, 1982: A Commentary, Volume VI (Martinus Nijhoff Publishers, The Hague, 2002), at p. 196.

9 Strategy for the International Seabed Authority? 101 who should have access to these so-called marine genetic resources and how the benefits might be shared.41 Part of the debate focuses on whether or not marine genetic resources found in sedentary communities on or in proximity to the ocean floor should be regarded as forming part of the Area and thus the common heritage of humankind.42 However, it is important to note that LOSC Article 145 already provides for the protection of all flora and fauna at least from adverse effects of seabed mining. Corresponding to Article 192, this obligation is not restricted to flora and fauna that were known at the time of negotiating the LOSC. As a result, the environmental mandate of the ISA will continue to exist regardless of what decision may be taken in the future with respect to access to and benefit-sharing of marine genetic resources. In setting environmental standards, the ISA must be guided by general international environmental law and, in particular, by Part XII of the LOSC on the protection and preservation of the marine environment. Interpreting the Part XI regime in its broader legal context is provided for by customary and conventional international law.43 With respect to LOSC Part XII, an earlier draft of what subsequently became LOSC Article 145 specifically referred to the need to take protective measures in accordance with Part XII.44 The wording was ultimately replaced by the requirement to act in accordance with this Convention. 45 In this context, two issues are particularly important. First, LOSC Article 197 in Part XII highlights the need to take into account characteristic regional features of marine environments.46 In the deep ocean context, this requires particular attention to be given to unique and largely uncharted ecosystems and unidentified organisms. Second, Part XII places the duty to prevent marine pollution in the wider context of the preservation of the marine 41 L. Glowka, Genetic Resources, Marine Scientific Research and the International Seabed Area (1999) 8(1) Review of European Community and International Environmental Law See for example Report of the Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction and Co-Chairs summary of discussions (A/67/95, 13 June 2012), paragraphs 15 19; F. Armas-Pfirter, How Can Life in the Deep Sea Be Protected? (2009) 24(2) International Journal of Marine and Coastal Law Vienna Convention on the Law of Treaties (Vienna, 23 May 1969, in force 27 January 1980) 1155 UNTS 331, Article 31(3)(c). 44 Nandan et al. (n 40), at p LOSC, Article LOSC, Article 197.

10 102 Jaeckel environment.47 As such, the obligation to protect and preserve the marine environment goes beyond avoiding harm and includes the requirement to take active measures to enhance the state of the marine environment.48 According to the commentary to Part XII, this goes much further than merely combating pollution after it has already taken place. It entails the active taking of legal and administrative measures, and the application of scientific methods and procedures which are all designed not simply to check or abate the deterioration of marine ecosystems, but also to provide the means for protecting and preserving the marine environment from the harmful effects of pollution and other hazards. 49 This proactive approach envisaged in the LOSC of regulating and managing human activities before serious harm occurs, provides the parameters of the broad obligation of the ISA to protect the marine environment from harmful effects of seabed mining activities and the legal framework for the development of a comprehensive environmental management strategy. Legal Basis for Eight Potential Components of an Environmental Management Strategy The following section analyses the legal basis for eight potential components of an environmental management strategy, namely: regional and ecosystembased management; marine protected areas; precautionary approach and best environmental practices; cumulative environmental impacts; resource use conflicts; cooperation by contractors on environmental studies; marine scientific research; and compliance, monitoring, and enforcement. These elements address some of the current challenges with respect to minimising environmental impacts from seabed mining, whilst at the same time situating mining efforts within the context of other human activities that affect the marine environment. The list of elements is non-exhaustive. 47 M. H. Nordquist, S. Rosenne, A. Yankov and N. R. Grandy, United Nations Convention on the Law of the Sea, 1982: A Commentary, Volume IV (Martinus Nijhoff Publishers, Dordrecht, 1991), at pp ; D. Freestone, Problems of High Seas Governance, in D. Vidas and P. J. Schei (eds), The World Ocean in Globalisation: Climate Change, Sustainable Fisheries, Biodiversity, Shipping, Regional Issues (Martinus Nijhoff Publishers, Leiden, 2011) , at p Nordquist et al. (n 47), at pp Ibid., at p. 11.

11 Strategy for the International Seabed Authority? 103 Regional and Ecosystem-based Management One of the key benefits of a comprehensive environmental management strategy would be to supplement the work of individual contractors with a focus by the central management at ISA level on regional and ecosystem-based approaches. This section discusses the legal basis for such a component and its previous integration into ISA management measures. The LOSC does not specifically mention ecosystem-based management. Although the adoption of the LOSC in 1982 predates the mainstreaming of this concept into oceans management, applying ecosystem-based management to seabed mining activities is nevertheless consistent with the overall objectives and requirements of the LOSC to study, protect, and preserve the marine environment, and its specific obligation to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life.50 Moreover, numerous subsequent international instruments endorse an ecosystem-based approach to managing human activities in the marine environment, including the Convention on Biological Diversity,51 the Fish Stocks Agreement,52 UN General Assembly Resolutions,53 and the outcome document of the Rio+20 UN Conference on Sustainable Development.54 The EMP for the Clarion-Clipperton Zone presents a first example of a regionally focused, ecosystem-based management plan adopted by the ISA. Particularly relevant to the present context is that managing the Clarion- Clipperton Zone consistently with the principles of integrated ecosystembased management is an integral goal of the EMP.55 In adopting the EMP, ISA Member States specifically recognized that one of the aims was to contribute to achieving the targets set forth in the Plan of Implementation of the World Summit on Sustainable Development, including adopting ecosystem 50 LOSC, preamble, paragraph 4 (Objectives); Articles 192, 194(5), Convention on Biological Diversity (Rio de Janeiro, 5 June 1992, in force 29 December 1993) 1760 UNTS 79, preamble, paragraph 10 and Article Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 4 August 1995 (New York, 4 August 1995, in force 11 December 2001) 2167 UNTS 88, Article UNGA Resolution 68/70 (n 24), paragraphs 157, 184, 186; UNGA Resolution 67/78, Oceans and the law of the sea (18 April 2013), paragraph UNGA Resolution 66/288, The Future We Want (11 September 2012), paragraph EMP (n 22), paragraph 35(d).

12 104 Jaeckel approaches to environmental management.56 Nonetheless, the EMP is limited to the Clarion-Clipperton Zone and focuses only on polymetallic nodules. As with the EMP,57 compelling policy reasons also exist for the ISA to assume a proactive approach to ecosystem-based management for all types of mineral resources under its jurisdiction, especially in light of the growing concern for the protection of marine biodiversity in areas beyond national jurisdiction. In this respect, in 2013, the UN General Assembly called upon States and international organisations to urgently take further action to address, in accordance with international law, destructive practices that have adverse impacts on marine biodiversity and ecosystems, including seamounts, hydrothermal vents and cold water corals 58 and expressly encouraged organisations, such as the ISA, to incorporate an ecosystem approach into their mandates.59 In accordance with this call, the ISA is conducting preliminary work on environmental baselines that will facilitate an ecosystem-based approach. Despite the fact that commercial seabed mining is expected to commence in the near future, one of the critical tasks at present is still to establish environmental baselines in order to understand which biota occur at a specific mine site, what impacts mining will have, and how these impacts may be minimised and managed. In this context, a major challenge is posed by the lack of a common language for identifying new organisms found during environmental studies. Taxonomic standardisation is crucial to compare biological data obtained from various sites and determine whether specific organisms are endemic or occur in the wider region or beyond. However, taxonomic expertise is extremely limited 60 and contractors may not possess the highly specialized expertise needed to identify all faunal groups. A first step towards standardising deep ocean taxonomy was taken with the convening of a taxonomy exchange workshop in Wilhelmshaven, Germany in 56 Ibid., paragraph 35(b); Plan of Implementation of the World Summit on Sustainable Development, published in Report of the World Summit on Sustainable Development (Johannesburg, 26 August to 4 September 2002) (A/CONF.199/20* and Corrigendum A/CONF.199/20/Corr.1), Chapter I, Resolution 2, Annex. 57 M. W. Lodge, Some Legal and Policy Considerations Relating to the Establishment of a Representative Network of Protected Areas in the Clarion-Clipperton Zone (2011) 26(3) International Journal of Marine and Coastal Law UNGA Resolution 67/78 (n 53), paragraph Ibid., paragraph 174; See also the abovementioned call for further EMPs: UNGA Resolution 68/70 (n 24), paragraph Recommendations for the Guidance of Contractors for the Assessment of the Possible Environmental Impacts Arising from Exploration for Marine Minerals in the Area (ISBA/19/LTC/8, 1 March 2013), Annex I, paragraph 40.

13 Strategy for the International Seabed Authority? 105 June The workshop, envisaged in the EMP,61 brought together representatives of contractors and an expert team of taxonomists from the International Network for Scientific Investigations of Deep-Sea Ecosystems (INDEEP). It concentrated on standardizing megafauna taxonomy in polymetallic nodule exploration areas in the Clarion-Clipperton Zone. Further workshops are planned for macrofaunal and meiofaunal taxonomy. A similar series of workshops is envisaged for polymetallic sulphides and cobalt-rich ferromanganese crusts in the contract areas elsewhere in the ocean. The biological data obtained from ISA contractors engaged in exploration work will be integrated into a Geographic Information System (GIS) database for the Clarion- Clipperton Zone being developed by the ISA secretariat to establish, inter alia, a repository of biodiversity information in the region.62 This will facilitate ecosystem-based, spatial management once sufficient mineral and biodiversity data are available.63 However, this aim is impeded by two factors. First, the lack of raw data submitted by contractors associated with environment baseline studies.64 Second, although ISA contractors are required to collect and submit environmental baseline data for their contract areas,65 they have no obligation to do so for the nine APEIs in the Clarion-Clipperton Zone, although the EMP encourages scientific research in these areas.66 Beyond the EMP, the ISA also incorporated ecosystem considerations in its Recommendations for the guidance of contractors to assess environmental impacts arising from exploration for marine minerals in the Area (2013 Recommendations).67 The Recommendations identify important differences 61 EMP (n 22), paragraph Report of the Secretary-General of the International Seabed Authority (n 21), paragraph Ibid. 64 Periodic Review of the Implementation of the Plans of Work for Exploration for Polymetallic Nodules in the Area Report of the Secretary-General (ISBA/19/C/9/Rev.1, 27 July 2013), paragraph 6; Seascape Consultants Ltd, Review of Implementation of the Environmental Management Plan for the Clarion-Clipperton Zone Report to the International Seabed Authority (2014), available at EN/20Sess/LTC/CCZ-EMPRev.pdf, accessed 3 September 2014, 20 pages, at pp. 10, Nodules Exploration Regulations, Regulation 32; Sulphides Exploration Regulations, Regulation 34; Crusts Exploration Regulations, Regulation 34. See also 1994 Implementing Agreement, Annex, section 1(7). 66 Lodge et al. (n 23), at p. 69; Seascape (n 64), at p. 15; EMP (n 22), paragraph 43; Decision of the Council Relating to an Environmental Management Plan for the Clarion-Clipperton Zone (ISBA/18/C/22, 26 July 2012), paragraph Recommendations (n 60).

14 106 Jaeckel in management requirements for various ecosystems,68 and endorse ecosystem studies prior to test-mining operations.69 To that end contractors must collect and submit environmental baseline data to the ISA;70 these data are used as a basis for regional environmental management,71 such as the aforesaid GIS database. This highlights an important consideration. Although environmental assessments and protective measures by contractors in their license area are important, individual contractors will not be able to ensure overall preservation of representative and unique marine ecosystems on a regional scale. As such, an ecosystem-based approach requires environmental management that is centrally coordinated by the ISA to ensure the integration of regional data, the use of spatial measures, and effective management of environmental impacts across all parts of the Area with mineral activities. It has become clear that developing and implementing regional ecosystembased management is consistent with the environmental competences of the ISA. Its recent practice demonstrates that the ISA has already started to include an ecosystem approach in its work. Furthermore, the aforesaid stakeholder survey specifically enquired about what ecosystem functions are critical to restore and which internationally accepted environmental management standards should be reflected in the future regulatory framework for the exploitation of polymetallic nodules.72 The application of an ecosystem approach can thus be expected to be formally incorporated into future exploitation regulations. Marine Protected Areas The need for a mechanism to establish a legally binding network of representative marine protected areas (MPAs) has been discussed extensively in the context of addressing the legal gaps in marine biodiversity protection in areas beyond national jurisdiction.73 Several international instruments have 68 Ibid., paragraph 33(e) and Annex, paragraphs Ibid., Annex I, paragraph Nodules Exploration Regulations, Regulation 32; Sulphides Exploration Regulations, Regulation 34; Crusts Exploration Regulations, Regulation 34; 1994 Implementing Agreement, Annex, section 1(7) Recommendations (n 60), paragraph Stakeholder Survey (n 8), questions 20, K. M. Gjerde and A. Rulska-Domino, Marine Protected Areas beyond National Jurisdiction: Some Practical Perspectives for Moving Ahead (2012) 27 International Journal of Marine and Coastal Law , at p. 353; K. N. Scott, Conservation on the High Seas: Developing the Concept of the High Seas Marine Protected Areas (2012) 27(4) International Journal of Marine and Coastal Law ; T. Scovazzi, Marine Protected Areas on the High Seas:

15 Strategy for the International Seabed Authority? 107 called for the establishment of MPAs, including the Convention on Biological Diversity,74 the Rio+20 outcome document,75 the Plan of Implementation of the World Summit on Sustainable Development,76 and Agenda Moreover, the UN General Assembly has repeatedly called upon States and international organisations to integrate MPAs as a tool to protect marine biodiversity.78 Designating MPAs and deploying other spatial planning measures across mineral resource deposits and regions are beyond the capability of individual contractors and instead requires central actions by the ISA. Although not mentioning MPAs per se, the LOSC indirectly provides for the protection of certain areas from seabed mining activities. In the context of deciding whether to grant new licenses, the ISA Council has, under Article 162(2)(x), the power to disapprove areas for exploitation in cases where substantial evidence indicates the risk of serious harm to the marine environment. The LTC has the corresponding task of recommending such action.79 Hence the Exploration Regulations require the LTC to not recommend approval of a plan of work for exploration if it covers an area disapproved for exploitation under the aforesaid provision.80 Consequently, once an area has been disapproved for exploitation on environmental grounds, it also becomes closed to exploration and even to prospecting.81 These provisions are problematic, not least because the standard of substantial evidence is undefined,82 yet it presupposes a form of environmental assessment. Nonetheless, because the measure could result in the prohibition of seabed mining activities in a specific area, it may be regarded as a spatial tool, consistent with the general obligation of States to protect and preserve Some Legal and Policy Considerations (2004) 19(1) International Journal of Marine and Coastal Law Convention on Biological Diversity, Article UNGA Resolution 66/288 (n 54), paragraph Plan of Implementation of the World Summit on Sustainable Development (n 56), chapter IV, paragraph 32(c). 77 Agenda 21 adopted by the UN Conference on Environment and Development (Rio de Janeiro, 3 to 14 June 1992) Section II, chapter 17, paragraph UNGA Resolution 68/70 (n 24), paragraphs ; UNGA Resolution 67/78 (n 53), paragraphs LOSC, Article 165(2)(l). 80 Nodules Exploration Regulations, Regulation 21(6); Sulphides Exploration Regulations, Regulation 23(6); Crusts Exploration Regulations, Regulation 23(6). 81 All Exploration Regulations, Regulation See also Stakeholder Survey (n 8), question 22.

16 108 Jaeckel rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life. 83 It remains unclear whether areas may only be disapproved for seabed mining upon receipt of an application for exploitation, or whether the ISA may use LOSC Article 162(2)(x) to identify relevant areas proactively and disapprove mining activities therein. Nevertheless, reliance on Article 162(2)(x) is not necessary in order to establish MPAs proactively, as LOSC Article 145 grants the ISA broad powers to take necessary measures to ensure marine environmental protection.84 Moreover, LOSC Article 165(2)(e) requires the LTC to make recommendations to the Council on the protection of the marine environment, taking into account the views of recognized experts in that field. There are no restrictions as to the focus of such recommendations. Consequently, the LTC is, in principle, able to recommend the establishment of MPAs.85 The Council, under Article 162 of the LOSC, has the competence to establish specific policies on any question or matter within the competence of the Authority and can implement recommendations by the LTC with regard to spatial management. The EMP for the Clarion-Clipperton Zone is a notable example of the ISA acting pursuant to Articles 145, 162, and 165(2)(e).86 The EMP confirms that best practice in managing human activities in the marine environment comprises spatial planning, including the protection of areas that are thought to represent a range of habitats, biodiversity, and ecosystem structures and functions.87 Thus, the APEIs represent the nine biogeographic subregions of the Clarion-Clipperton Zone.88 The adoption of the EMP leaves no doubt that declaring protected areas falls within the mandate of the ISA, despite initial confusion over this issue.89 However, it also highlights the need to apply spatial management at an early stage. In the case of the Clarion-Clipperton Zone, the distribution of the APEIs as initially recommended by the scientists had to be adjusted to avoid overlap with existing contracts and reserved areas LOSC, Article 194(5). 84 LOSC, Article 145; Lodge (n 57); P. Drankier, Marine Protected Areas in Areas beyond National Jurisdiction (2012) 27(2) International Journal of Marine and Coastal Law , at pp See also Lodge (n 57), at p Decision of the Council Relating to an Environmental Management Plan (n 66), preamble, paragraphs EMP (n 22), paragraph Ibid.; for an overview of the conservation planning process and design principles for the EMP, see Wedding et al. (n 10). 89 Lodge (n 57), at p EMP (n 22), paragraph 26.

17 Strategy for the International Seabed Authority? 109 Also relevant to the legal basis to declare MPAs are the Exploration Regulations. They specifically provide for the setting aside of preservation reference zones in which no mining is allowed.91 It is expected that the future exploitation regulations will build upon both the use of preservation reference zones and APEIs. Indeed, the aforesaid stakeholder survey seeks opinions on whether these tools are sufficient to achieve remediation of biodiversity and ecosystem functions following mining operations.92 The Exploration Regulations also recognize that vulnerable marine ecosystems, such as hydrothermal vents, seamounts, and cold water corals, may require special management.93 The LTC is required to develop and implement procedures for determining whether proposed exploration activities would have serious harmful effects on these ecosystems. If this is the case, the LTC must ensure that those activities are managed to prevent such effects or not authorized to proceed. 94 These provisions could in principle permit exploration work to be limited or prohibited in areas of particular, vulnerable ecosystems. However, despite calls by the UN General Assembly to consider means to manage the risks to these ecosystems,95 no action has yet been taken. Thus, it remains to be seen which procedures the LTC will develop and whether they may lead to some activities being restricted. Nonetheless, the ISA has meanwhile already approved six applications for contracts to explore for polymetallic sulphide deposits around hydrothermal vents and four applications to explore for ferromanganese crusts on seamounts. In sum, several legal provisions allow the ISA to declare MPAs and adopt other spatial tools. These are particularly topical, because the experience in the Clarion-Clipperton Zone has shown that for spatial tools to be most effective, they must be deployed before allocating contract areas. Precautionary Approach and Best Environmental Practices Deep ocean mining is characterised by numerous uncertainties. Given its potentially severe environmental consequences, managing seabed mining requires consideration of the numerous uncertainties involved, in line with the precautionary approach. The obligation to apply the precautionary approach 91 Nodules Exploration Regulations, Regulation 31(6); Sulphides Exploration Regulations, Regulation 33(6); Crusts Exploration Regulations, Regulation 33(6). 92 Stakeholder Survey (n 8), question Nodules Exploration Regulations, Regulation 31(4); Sulphides Exploration Regulations, Regulation 33(4); Crusts Exploration Regulations, Regulation 33(4). 94 Ibid. 95 UNGA Resolution 68/70 (n 24), paragraphs

18 110 Jaeckel is now generally considered to be a general principle of international environmental law and the Seabed Dispute Chamber has confirmed a trend towards making this approach part of customary international law. 96 Moreover, the Exploration Regulations specifically oblige both the ISA and sponsoring States to apply a precautionary approach, as reflected in principle 15 of the Rio Declaration, and best environmental practices. 97 The LTC is required to make recommendations to the Council on implementing this obligation.98 However, with the exception of the EMP, as of September 2014, no such recommendations have been made. In its landmark Advisory Opinion, the Seabed Disputes Chamber strongly supported the application of the precautionary approach and identified it as an element of the general obligation of due diligence by sponsoring States.99 This derives from the responsibility of States Parties to ensure that they, or entities they sponsor, comply with the applicable rules when carrying out mining activities in the Area.100 As an element of due diligence, the obligation to apply a precautionary approach is applicable even outside the scope of the [Exploration] Regulations. 101 The Seabed Disputes Chamber noted: The due diligence obligation of the sponsoring States requires them to take all appropriate measures to prevent damage that might result from the activities of contractors that they sponsor. This obligation applies in situations where scientific evidence concerning the scope and potential negative impact of the activity in question is insufficient but where there 96 Seabed Advisory Opinion, paragraph 135; A. Trouwborst, Evolution and Status of the Precautionary Principle in International Law (Kluwer Law International, The Hague, 2002); D. Freestone, Satya Nandan s Contribution to the Development of the Precautionary Approach in International Law, in M. Lodge and M. H. Nordquist (eds), Peaceful Order in the World s Oceans: Essays in Honor of Satya N. Nandan (Martinus Nijhoff Publishers, Leiden, 2014) Nodules Exploration Regulations, Regulation 31(2); Sulphides Exploration Regulations, Regulation 33(2); Crusts Exploration Regulations, Regulation 33(2). Similar obligations apply to contractors and prospectors. See Nodules Exploration Regulations, Regulations 2(2), 5(1), 31(5); Sulphides Exploration Regulations, Regulations 2(2), 5(1), 33(5); Crusts Exploration Regulations, Regulations 2(2), 5(1), 33(5). 98 Nodules Exploration Regulations, Regulation 31(3); Sulphides Exploration Regulations, Regulation 33(3); Crusts Exploration Regulations, Regulation 33(3). 99 Seabed Advisory Opinion, paragraphs Ibid., paragraphs ; See also LOSC, Articles 139, 153(4), and Annex III, Article 4(4) as cited in Seabed Advisory Opinion, paragraph Seabed Advisory Opinion, paragraph 131.

19 Strategy for the International Seabed Authority? 111 are plausible indications of potential risks. A sponsoring State would not meet its obligation of due diligence if it disregarded those risks.102 The Chamber also emphasized that the standard of due diligence may change over time, in light of, for instance, new scientific or technological knowledge, and that the standard of due diligence has to be more severe for the riskier activities. 103 In line with these findings, the Exploration Regulations also require the ISA and sponsoring States to apply best environmental practices.104 Again, the Seabed Disputes Chamber noted that this obligation, in general terms, may be seen to have become enshrined in the sponsoring States obligation of due diligence. 105 In sum, the ISA has a clear legal mandate to apply the precautionary approach and best environmental practices. The current challenge lies, however, in identifying the precise procedural obligations necessary to implement a precautionary approach.106 Moreover, because implementing a precautionary approach involves, inter alia, identification of uncertainties and assessment of management options, it also requires adequate institutional arrangements. In addition, although precautionary measures must be based on best scientific advice, they must also accommodate public values, given that management decisions have to be made in the face of uncertainties. These include value judgments placed on the risks and benefits of mineral mining and the support for protection of biodiversity and ecosystem services. Assessing Cumulative Environmental Impacts An ecosystem-based management strategy necessitates consideration of cumulative impacts of numerous mining operations and of impacts on marine ecosystems from, inter alia, climate change, fishing, and ocean acidification. Again, this cannot be achieved by individual contractors but presupposes a central role for the ISA. Indeed, integrating impact assessments of activities not regulated under Part XI of the LOSC may require collaboration with other organisations. 102 Ibid. 103 Ibid., paragraph Nodules Exploration Regulations, Regulation 31(2); Sulphides Exploration Regulations, Regulation 33(2); Crusts Exploration Regulations, Regulation 33(2). 105 Seabed Advisory Opinion, paragraph See Stakeholder Survey (n 8), question 26.