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

In: The International Journal of Marine and Coastal Law
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  • 1 Faculty of Law, University of New South Wales, Sydney, Australia

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.

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.

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 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 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 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 large-scale 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 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 granting contracts for exploitation in a designated area.”26 The proposal will be considered by the ltc in 2015.27

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 1994 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 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 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 ecosystem-based 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.

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 ecosystem-based 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 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 June 2013. 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 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 ecosystem-based 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 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 21.77 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 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.90

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 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 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.

Conducting environmental impact assessments (eias) is a general obligation under customary international law107 and under the losc.108 The legal framework for seabed mining in the Area requires eias at various stages of mineral exploration and exploitation.109 Moreover, sponsoring States must ensure that contractors conduct eias, which the Seabed Disputes Chamber has noted to be both a direct obligation and an element of due diligence,110 making it also applicable beyond the scope of the Exploration Regulations.111

Although cumulative impact assessments are not formally incorporated into the Exploration Regulations, the 2013 Recommendations issued by the ltc provide for the use of environmental baseline data for “regional environmental management and assessment of cumulative impacts.”112 Moreover, one of the management objectives of the emp is to “consider the cumulative impacts of mining and other human activities.”113 The emp requires the ltc to make a recommendation with regard to the implementation of the apeis and, in particular, to consider how to encourage their use as reference sites for scientific research on climate change, and to encourage other competent agencies to adopt compatible measures for other human activities.114 In doing so, the emp incorporates both the aims to assess the cumulative impacts of numerous mining operations on a regional scale115 and to take into account further human activities.116 In other words, the emp scales up the assessment of environmental impacts to a regional level and integrates the cumulative effects of various human activities.117 By building on the legal requirement to conduct eias, the isa has already confirmed the aim to ensure cumulative impact assessments.

A remaining challenge is to coordinate environmental management between the isa and other relevant organisations in order to overcome sectoral fragmentation and integrate the management of various human activities affecting the oceans.118 Furthermore, a challenge in developing the exploitation regulations will be to grant eias the central role they deserve in the process of deciding on new mining applications.119 Requiring the submission of eias is only effective if the ltc as the assessing body can closely examine the eia and compare it against regional environmental data held by the isa in order to make the required determination of whether the proposed plan of work provides for, inter alia, “effective protection and preservation of the marine environment”, including its biodiversity.120 This requirement in the Exploration Regulations is linked to losc Article 145, which sets a high environmental standard for the regulation of seabed mining.

Resource Use Conflicts

Closely linked to cumulative eias is the need to manage resource use conflicts and their potential environmental consequences. Article 147 losc provides that activities in the Area must be carried out with reasonable regard for other marine activities and vice-versa. Under the losc, the isa is specifically obliged to adopt rules, regulations and procedures for “the prevention of interference with other activities in the marine environment.”121 Furthermore, the standard clauses for exploration contracts require a contractor to carry out the programme of activities “with reasonable regard for other activities in the marine environment.”122 Thus, addressing potential conflicts between various resource uses through a comprehensive environmental management strategy would be in accordance with the isa’s mandate.

These provisions, together with the mandate for marine scientific research discussed below, may become particularly relevant to address the overlaps between mining mineral deposits and utilising the genetic resources present at the same sites.123 Such bioprospecting activities may compete with seabed mining, as the latter will greatly affect living resources at mine sites, but may also benefit from mineral exploration. This is because identifying and studying the biological communities around mine sites is itself a direct obligation on contractors under the Exploration Regulations in order to establish environmental baselines and permit assessing environmental impacts, especially with regard to marine biodiversity.124

Cooperation by Contractors on Environmental Studies

A comprehensive environmental management strategy could draw upon the expertise of and environmental data collected by contractors, to enable the isa to adopt regional, ecosystem-based measures. To this end, enhanced cooperation by contractors on environmental studies and on standardized sampling data and taxonomy would be beneficial. The aforesaid taxonomy workshops are a noteworthy first step.

As for the legal basis for such cooperation, losc Article 160(2)(j) requires the isa Assembly to “initiate studies and make recommendations for the purpose of promoting international cooperation concerning activities in the Area.” Article 138 losc imposes a general obligation on States Parties to cooperate in relation to activities in the Area. This is complemented by specific obligations to cooperate, directly or through competent international organisations, including in the exchange of data about marine environmental pollution.125 Moreover, States Parties must cooperate in elaborating international standards and recommended practices for environmental protection.126 Furthermore, States Parties are expressly obliged to “endeavour to participate actively in regional and global programmes to acquire knowledge for the assessment of the nature and extent of pollution, exposure to it, and its pathways, risks and remedies.”127

The aim to enhance cooperation between contractors has already been recognized in the emp, which encourages cooperation amongst contractors and between contractors and independent experts to identify uniform guidelines for designating, inter alia, preservation reference areas in the Clarion-Clipperton Zone.128 Furthermore, the 2013 Recommendations specifically endorse cooperation between contractors,129 yet limit the role of the isa to serving “in an advisory capacity to mining contractors in terms of identification of cooperative research opportunities.”130

Marine Scientific Research and Capacity Building

Marine scientific research must be an essential element of a comprehensive environmental management strategy in order to create and update environmental baselines and achieve a better understanding of environmental factors, processes, and linkages to enable ecosystem-based management. To that end the stakeholder survey specifically seeks suggestions on how to promote best practices in marine scientific research “to better protect the environment during exploitation operations.”131

Under the losc, States Parties have the right to carry out marine scientific research in the Area and must promote international cooperation in such research.132 This may include participating in international programmes.133 Pursuant to losc Article 143(2), the isa must promote and encourage the conduct of marine scientific research in the Area, and coordinate and disseminate the results. The 1994 Implementing Agreement classifies this obligation as a priority focus to be pursued before the start of the exploitation phase and highlights the need to place “particular emphasis on research related to the environmental impact of activities in the Area.”134 Furthermore, the isa itself is authorised to carry out marine scientific research on the Area and its resources and to enter into contracts for that purpose.135 The isa is actively engaged in realizing these obligations, including by organising regular workshops, commissioning technical studies, and collaborating in research projects.136

Incorporating marine scientific research into an environmental strategy would be in accordance with the mandate of the isa. In fact the un General Assembly recently called upon

States, individually or in collaboration with each other or with competent international organizations and bodies, to continue to strive to improve understanding and knowledge of the oceans and the deep sea, including, in particular, the extent and vulnerability of deep sea biodiversity and ecosystems, by increasing their marine scientific research activities in accordance with the Convention.137

A scientific research component of an environmental strategy could be designed to also help promote the effective participation of developing States as specifically provided for in losc Part xi.138 States Parties have a general obligation to provide scientific and technical assistance to developing States139 and to promote international technical and scientific cooperation including by “developing cooperation programmes in marine science and technology and the protection and preservation of the marine environment.”140 Similarly, the isa must acquire technology and scientific knowledge relating to activities in the Area and promote and encourage the transfer thereof to developing States.141 These capacity-building obligations could be considered when designing an environmental management strategy. Indeed, the emp specifically aims to secure “the participation of developing countries and multilateral exchange of views on environmental management issues.”142

Compliance, Monitoring, and Enforcement

Monitoring and ensuring compliance with environmental measures are important aspects of a comprehensive environmental management strategy. The legal basis for enforcement powers are found in the losc. Article 153(4) losc states that the isa “shall exercise such control over activities in the Area as is necessary for the purpose of securing compliance” with the losc, the Exploration Regulations, and approved plans of work. Moreover, the isa has “the right to take at any time any measures provided for under [Part xi] to ensure compliance [...].”143 These provisions confer broad competences on the isa to decide for itself on the measures necessary to ensure compliance. To guarantee that inspections will form part of the compliance mechanism, the losc specifically mandates the isa to inspect all installations in the Area used in connection with exploration or exploitation for minerals in the Area.144 The details of such a system of inspections for the exploitation stage remain to be developed145 but will likely comprise institutional changes, for example, the establishment of an inspection unit.146

In complementing these general powers, the Council of the isa has the mandate to exercise control over exploration and exploitation work in the Area in accordance with losc Article 153(4), including organising inspections of activities in the Area.147 The ltc has the corresponding mandate to make recommendations to the Council on such inspections.148 The Council can also request the ltc to supervise activities in the Area.149

In addition to these broad enforcement powers, the losc also foresees a specific enforcement mechanism through emergency orders for potential environmental damage. The isa is mandated to issue emergency orders to prevent serious environmental harm arising out of activities in the Area; these may include suspension or adjustment of operations and must be recommended by the ltc150 and issued by the Council.151 If the contractor does not comply with an emergency order, the Council can take “such practical measures as are necessary to prevent, contain and minimize any such serious harm or threat of serious harm to the marine environment.”152 The contractor must reimburse the isa for the expenses incurred in taking such measures.153 This allows the isa to promptly respond to pollution emergencies, whilst upholding the polluter-pays principle.154

These enforcement powers allow the isa to develop comprehensive and far-reaching measures to ensure compliance. In order to oversee ongoing activities and to identify non-compliance, the isa also has the competence to monitor activities in the Area with regard to the risk and effects of pollution. Article 165(2)(h) losc requires the ltc to make recommendations to the Council in this respect, to ensure compliance with existing regulations, and to coordinate the implementation of such monitoring.155 This has been incorporated in the Exploration Regulations in the form of a programme for monitoring and evaluating the impacts of deep seabed mining on the marine environment, which requires contractors to report their results annually and submit relevant environmental data.156 The existing monitoring programme could serve as a basis for an expanded monitoring element of a comprehensive environmental management strategy.

Conclusion

As the discussion has demonstrated, the isa’s extensive competences for the protection of the marine environment allow the development of a comprehensive environmental management strategy to provide systematic environmental measures and safeguards during exploration for and exploitation of minerals. This article discussed the legal basis for eight possible components of a future strategy. Although analysed individually, these components are interconnected. Establishing mpas, for example, can be part of a precautionary approach and also support research on understanding the connectivity within and across ecosystems and thus aid in both deciding on ecosystem management measures and assessing cumulative environmental impacts.

It is clear that these components fall within the isa’s mandate and are consistent with international environmental legal principles. Indeed, most of the components have already been endorsed by the isa, albeit through ad hoc decisions, first and foremost the decision to adopt the emp for an initial period of three years. The emp is a noteworthy first step towards regional ecosystem-based management of mining activities in the Clarion-Clipperton Zone.

However, other aspects of the isa’s environmental mandate are yet to be realised. These include deciding on special protection measures for vulnerable marine ecosystems from exploration work, identifying comprehensive means to implement the precautionary approach, adopting regulations on resource use conflicts, and applying ecosystem and spatial management beyond the Clarion-Clipperton Zone. Consequently, significant potential remains for the isa to advance stewardship and ecosystem-based management of deep ocean resources.

In light of the recent increase in exploration work, the imminent transition to the exploitation phase, and the current challenges to adopt a regulatory framework for mineral exploitation, a discussion on the isa’s work in implementing its environmental obligations is both timely and important. Furthermore, given the legal lacuna on marine biodiversity in areas beyond national jurisdiction, an urgent need exists to advance protection of marine biodiversity within the existing legal and institutional framework, including that of the isa.157

The isa is equipped with a far-reaching environmental mandate, regulatory competences, enforcement powers, a dispute settlement mechanism, and an explicit stewardship mandate to administer the Area and its resources on behalf of humankind as a whole.158 Moreover, the inherently evolutionary design of losc Part xi and the 1994 Implementing Agreement enables the isa to adopt and review environmental rules, regulations, and procedures in line with new scientific understanding of and societal values placed on seabed minerals, biodiversity, and ecosystem functions. Furthermore, in its Advisory Opinion, the Seabed Disputes Chamber demonstrated its willingness to interpret the law in line with modern environmental protection measures in the seabed mining context. Consequently, the isa is well positioned to advance a strategic vision, integrating modern environmental management tools, to ensure seabed mineral mining in the Area will cause no more environmental harm than necessary.

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 http://isa.org.jm/files/documents/EN/SG-Stats/NAO-Statement.pdf, accessed 3 September 2014.

2 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. 10–11.

4 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).

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 http://isa.org.jm/en/sessions/2014/Survey, accessed 3 September 2014.

9 C. L. Van Dover, ‘Tighten regulations on deep-sea mining’ (2011) 470 Nature 31–33.

10 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 20131684–20131693, at p. 20131684.

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 3.

12 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).

13 losc, Article 157(1).

14 losc, Article 136.

15 losc, Articles 137, 153(1).

16 Seabed Advisory Opinion (n 12), paragraph 159.

17 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 525–568, at p. 544.

18 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. 11–12.

19 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 696–698, 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 219–241, at p. 231.

20 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 6.

22 ‘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 66–72.

24 unga Resolution 68/70, ‘Oceans and the Law of the Sea’ (27 February 2014), paragraph 51.

25 ‘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.

26 ‘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 12.

27 ‘Summary Report of the President of the Council of the International Seabed Authority’ (n 7), paragraph 15.

28 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).

32 1994 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.

41 L. Glowka, ‘Genetic Resources, Marine Scientific Research and the International Seabed Area’ (1999) 8(1) Review of European Community and International Environmental Law 56–66.

42 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 281–307.

43 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. 195.

45 losc, Article 145.

46 losc, Article 197.

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. 10–11; 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) 99–132, at p. 122.

48 Nordquist et al. (n 47), at pp. 40–41.

49 Ibid., at p. 11.

50 losc, preamble, paragraph 4 (Objectives); Articles 192, 194(5), 200.

51 Convention on Biological Diversity (Rio de Janeiro, 5 June 1992, in force 29 December 1993) 1760 unts 79, preamble, paragraph 10 and Article 8.

52 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 5.

53 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 172.

54 unga Resolution 66/288, ‘The Future We Want’ (11 September 2012), paragraph 158.

55 emp (n 22), paragraph 35(d).

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 463–480.

58 unga Resolution 67/78 (n 53), paragraph 191.

59 Ibid., paragraph 174; See also the abovementioned call for further emps: unga Resolution 68/70 (n 24), paragraph 51.

60 ‘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.

61 emp (n 22), paragraph 49.

62 Report of the Secretary-General of the International Seabed Authority (n 21), paragraph 82.

63 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 http://isa.org.jm/files/documents/EN/20Sess/LTC/CCZ-EMPRev.pdf, accessed 3 September 2014, 20 pages, at pp. 10, 16.

65 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 8.

67 2013 Recommendations (n 60).

68 Ibid., paragraph 33(e) and Annex, paragraphs 5–6.

69 Ibid., Annex i, paragraph 39.

70 Nodules Exploration Regulations, Regulation 32; Sulphides Exploration Regulations, Regulation 34; Crusts Exploration Regulations, Regulation 34; 1994 Implementing Agreement, Annex, section 1(7).

71 2013 Recommendations (n 60), paragraph 16.

72 Stakeholder Survey (n 8), questions 20, 27.

73 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 351–373, 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 849–857; T. Scovazzi, ‘Marine Protected Areas on the High Seas: Some Legal and Policy Considerations’ (2004) 19(1) International Journal of Marine and Coastal Law 1–17.

74 Convention on Biological Diversity, Article 8.

75 unga Resolution 66/288 (n 54), paragraph 177.

76 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 17.86.

78 unga Resolution 68/70 (n 24), paragraphs 208–213; unga Resolution 67/78 (n 53), paragraphs 192–198.

79 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 2.

82 See also Stakeholder Survey (n 8), question 22.

83 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 291–350, at pp. 294–295.

85 See also Lodge (n 57), at p. 468.

86 Decision of the Council Relating to an Environmental Management Plan (n 66), preamble, paragraphs 1–3.

87 emp (n 22), paragraph 21.

88 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. 465.

90 emp (n 22), paragraph 26.

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 19.

93 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 211–213.

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) 308–324.

97 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 131–132.

100 Ibid., paragraphs 107–116; See also losc, Articles 139, 153(4), and Annex iii, Article 4(4) as cited in Seabed Advisory Opinion, paragraph 99.

101 Seabed Advisory Opinion, paragraph 131.

102 Ibid.

103 Ibid., paragraph 117.

104 Nodules Exploration Regulations, Regulation 31(2); Sulphides Exploration Regulations, Regulation 33(2); Crusts Exploration Regulations, Regulation 33(2).

105 Seabed Advisory Opinion, paragraph 136.

106 See Stakeholder Survey (n 8), question 26.

107 Seabed Advisory Opinion, paragraph 145; R. Warner, ‘Oceans beyond Boundaries: Environmental Assessment Frameworks’ (2012) 27 International Journal of Marine and Coastal Law 481–499.

108 losc, Articles 165(2)(d), (f), (h), 206.

109 1994 Implementing Agreement, Annex, section 1(7); Nodules Exploration Regulations, Regulations 18, 31(4), (6), 32(1), (2); Sulphides Exploration Regulations, Regulations 20(1), 33(4), (6), 34(1), (2); Crusts Exploration Regulations, Regulations 20(1), 33(4), (6), 34(1), (2); All Exploration Regulations, Annex 4, sections 5.2, 5.3.

110 Seabed Advisory Opinion, paragraphs 141–145.

111 Ibid., paragraph 150.

112 2013 Recommendations (n 60), paragraph 16.

113 emp (n 22), paragraph 40(b); See also paragraphs 34 and 37.

114 Ibid., paragraph 43.

115 Ibid., paragraphs 13, 35(f), (g), 37, 40.

116 Ibid., paragraphs 40, 43.

117 Ibid.

118 Ibid., paragraph 12; Seascape (n 64), at pp. 17, 19; unga Resolution 68/70 (n 24), paragraph 260.

119 See Stakeholder Survey (n 8), question 18.

120 Nodules Exploration Regulations, Regulation 21(4); Sulphides Exploration Regulations, Regulation 23(4); Crusts Exploration Regulations, Regulation 23(4).

121 losc, Annex iii, Article 17(1)(b)(ix).

122 Exploration Regulations, Annex 4, section 13(3).

123 See also the section above on the general obligation of the isa to protect the marine environment.

124 Nodules Exploration Regulations, Regulations 18(b), 32; Sulphides Exploration Regulations, Regulations 20(b), 34; Crusts Exploration Regulations, Regulations 20(b), 34; 2013 Recommendations (n 57), paragraph 15(e).

125 losc, Article 200.

126 losc, Articles 197, 201.

127 losc, Article 200.

128 emp (n 22), paragraphs 41(e), 47–50.

129 2013 Recommendations (n 60), paragraphs 40–43.

130 Ibid., paragraph 41.

131 Stakeholder survey (n 8), question 23.

132 losc, Articles 143, 256.

133 losc, Article 143(3).

134 1994 Implementing Agreement, Annex, section 1(5).

135 losc, Article 143(2).

136 For an overview of the isa’s work in this regard, see M. W. Lodge, ‘Collaborative Marine Scientific Research on the International Seabed’ (2008) 3 The Journal of Ocean Technology, 30–36.

137 unga Resolution 68/70 (n 24), paragraph 222.

138 losc, Article 148.

139 losc, Article 202.

140 1994 Implementing Agreement, Annex, section 5(1)(c).

141 losc, Article 144(1).

142 emp (n 22), paragraph 35(i).

143 losc, Article 153(5).

144 Ibid.

145 See Stakeholder Survey (n 8), question 25.

146 Clark et al. (n 3), at p. 78.

147 losc, Article 162(2)(l), (z).

148 losc, Article 165(2)(m).

149 losc, Article 165(2)(c).

150 losc, Article 165(2)(k).

151 losc, Article 162(2)(w).

152 Nodules Exploration Regulations, Regulation 33(7); Sulphides Exploration Regulations, Regulation 35(7); Crusts Exploration Regulations, Regulation 35(7).

153 Exploration Regulations, Annex 4, section 6.4.

154 J. Harrison, Making the Law of the Sea: A Study in the Development of International Law (Cambridge University Press, Cambridge, 2011) at p. 140.

155 See also losc, Article 204.

156 Nodules Exploration Regulations, Regulations 31(6), 32; Sulphides Exploration Regulations, Regulations 33(6), 34; Crusts Exploration Regulations, Regulations 33(6), 34.

157 See for example unga Resolution 58/240 ‘Oceans and the law of the sea’ (5 March 2004), paragraph 52.

158 losc, Article 153(1).