mandatory ISA ‘rules’, and are not sufficiently bolstered by ISA regulations to make
their provisions binding,
35 and (iii) that agreeing a REMP and management measures (including APEIs) is not the end of the process; instead, ongoing evaluation
and monitoring (and ability to adjust the REMP upon receipt of new data) is
required,
36 which would require a legal framework, scientific capacity and financial
resources to make it happen.
Each of these REMP issues suggests gaps in the ISA rules that may undermine the
ability of the ISA to comply with its UNCLOS duties to protect the environment of
the Area.
2.5 Environmental Impact Assessment
Environmental impact assessment (‘EIA’) will be an essential part of the ISA regime
as a tool to inform decision-making about whether, when, and how to proceed with
exploitation activities in the Area.
37 Since the 1970s, EIAs have become a staple
regulatory process across most jurisdictions globally. Comparative analysis shows
that within this body of practice, a similar set of generic elements or stages can be
identified
38 :
1) a screening process that determines which activities will be subject to an environmental assessment;
2) a scoping process that identifies the specific environmental issues or concerns to
be included in the assessment, including determining the range of alternatives
that will also be subject to assessment;
3) the preparation of the environmental impact study;
4) consultation and participation with the public and other agencies;
5) the decision respecting the activity under assessment; and
6) follow-up measures that may be required, such as monitoring of effects, during
the project and after it has been completed.
Somewhat surprisingly, very few of these stages (if any) are currently contained
in ISA Regulations. This may be due to an expectation that such matters will be
covered in the rules for exploitation (not exploration), given that this is the phase at
which the highest-impact activities will occur. But such reliance may be misplaced
(see below, and Sect. 3).
35 This point was noted in several stakeholder responses to the draft Exploitation Regulations, for
example, Australia, Germany, Nauru, United Kingdom. Available at: https://ran-s3.s3.amazonaws.
com/isa.org.jm/s3fs-public/files/documents/comments_0.pdf.
36 Amon and Smith ‘How to Protect the Deep Sea: Why regional environmental management plans
are important’ Pew Charitable Trusts, December 2018, available at: https://www.pewtrusts.org/en/
research-and-analysis/fact-sheets/2018/12/how-to-protect-the-deep-sea.
37 See, for example, Art.165(2)(d) and (f), and Art. 206 of UNCLOS; and Annex, Section 1, para.
7 of the 1994 Agreement; and Regulation 20 of the Exploration Regulations.
38 Supra, n. 19.
18 Regulating the Common Heritage of Mankind: Challenges in Developing a Mining. . . 341
their provisions binding,
35 and (iii) that agreeing a REMP and management measures (including APEIs) is not the end of the process; instead, ongoing evaluation
and monitoring (and ability to adjust the REMP upon receipt of new data) is
required,
36 which would require a legal framework, scientific capacity and financial
resources to make it happen.
Each of these REMP issues suggests gaps in the ISA rules that may undermine the
ability of the ISA to comply with its UNCLOS duties to protect the environment of
the Area.
2.5 Environmental Impact Assessment
Environmental impact assessment (‘EIA’) will be an essential part of the ISA regime
as a tool to inform decision-making about whether, when, and how to proceed with
exploitation activities in the Area.
37 Since the 1970s, EIAs have become a staple
regulatory process across most jurisdictions globally. Comparative analysis shows
that within this body of practice, a similar set of generic elements or stages can be
identified
38 :
1) a screening process that determines which activities will be subject to an environmental assessment;
2) a scoping process that identifies the specific environmental issues or concerns to
be included in the assessment, including determining the range of alternatives
that will also be subject to assessment;
3) the preparation of the environmental impact study;
4) consultation and participation with the public and other agencies;
5) the decision respecting the activity under assessment; and
6) follow-up measures that may be required, such as monitoring of effects, during
the project and after it has been completed.
Somewhat surprisingly, very few of these stages (if any) are currently contained
in ISA Regulations. This may be due to an expectation that such matters will be
covered in the rules for exploitation (not exploration), given that this is the phase at
which the highest-impact activities will occur. But such reliance may be misplaced
(see below, and Sect. 3).
35 This point was noted in several stakeholder responses to the draft Exploitation Regulations, for
example, Australia, Germany, Nauru, United Kingdom. Available at: https://ran-s3.s3.amazonaws.
com/isa.org.jm/s3fs-public/files/documents/comments_0.pdf.
36 Amon and Smith ‘How to Protect the Deep Sea: Why regional environmental management plans
are important’ Pew Charitable Trusts, December 2018, available at: https://www.pewtrusts.org/en/
research-and-analysis/fact-sheets/2018/12/how-to-protect-the-deep-sea.
37 See, for example, Art.165(2)(d) and (f), and Art. 206 of UNCLOS; and Annex, Section 1, para.
7 of the 1994 Agreement; and Regulation 20 of the Exploration Regulations.
38 Supra, n. 19.
18 Regulating the Common Heritage of Mankind: Challenges in Developing a Mining. . . 341