In any event, the status of current procedures, which has been confirmed by the
ISA Secretariat,
44 is that: the contractor will receive some technical feedback from
the ISA’s LTC (via the Secretariat), which the contractor may take into account, and
will then proceed. There is no consultation process,
45 and—crucially—no permitting
process as such. This appears inadequate to meet the requirement that ‘to be
effective, the EIA process should be fully integrated into the ISA contract granting
decision making process and accompanied by effective regulatory and management
control’.
46 Surprisingly, the Council has no role, and there is no specific decision
taken by any organ of the ISA in relation to the proposed activity and EIA. This
process raises the serious question whether the ISA has the ability to impose
restrictions on the proposed activity or to prohibit it.
In summary then, under the existing exploration regime, the submission of some
kind of EIA report (the content largely at the discretion of the contractor) is a
procedural recommendation (only), in certain circumstances. The content of that
EIA is not reviewed by the decision-making bodies within the ISA, nor does it form
evidence or substance on which any permitting or regulatory action can be taken.
The ISA regime currently in place therefore departs widely from the six-stage EIA
process established as good practice world-wide.
47 Such significant regulatory gaps
would appear to interfere materially with the ability of the ISA to protect the marine
environment as required under UNCLOS Article 145.
One reason for this surprising lacuna may be a presumption that EIA processes
will instead be set and enforced by sponsoring States. However, a review of existing
domestic sponsorship laws currently in force
48 does not show evidence that sponsoring States in fact have such rules in place at the national level to cover activities
occuring in the Area. Even if such rules are put in place, unless the ISA requires
harmonisation, relying upon the individual domestic laws for EIA across twenty
different sponsoring State would lead to a patchwork of different and inconsistent
processes and standards.
There may also have been an historic presumption that EIAs and environmental
permitting decisions would occur under Exploitation contracts or at the point of
application for Exploitation, not under Exploration contracts. This presumption has
now been rebutted by the two EIA reports referenced above; nor does such a
44 Email correspondence on file, with staff members of the ISA Secretariat, October 2018.
45 The two EIA reports submitted recently by contractors for a technology-testing activity under an
exploration licence, have been published on the ISA website (https://www.isa.org.jm/environmen
tal-impact-assessments) implying some degree of transparency. But there is no accompanying note.
It is not clear whether these are open for consultation (and if so, by whom, to whom, by what
mechanism, and in what timeframe submissions will be received).
46 Supra, n. 13.
47 The only possible exceptions are a partial (non-mandatory and non-detailed) stage 1 (the screening process that determines which activities will be subject to an environment assessment) and stage
3 (the fact that an EIA report is prepared). There appears to be no requirement in the ISA exploration
regime for stage 2 (scoping), stage 3 (consultation and participation), stage 4 (decision) or stage
5 (follow-up measures).
48 For example, Lily (2018).
18 Regulating the Common Heritage of Mankind: Challenges in Developing a Mining. . . 343
ISA Secretariat,
44 is that: the contractor will receive some technical feedback from
the ISA’s LTC (via the Secretariat), which the contractor may take into account, and
will then proceed. There is no consultation process,
45 and—crucially—no permitting
process as such. This appears inadequate to meet the requirement that ‘to be
effective, the EIA process should be fully integrated into the ISA contract granting
decision making process and accompanied by effective regulatory and management
control’.
46 Surprisingly, the Council has no role, and there is no specific decision
taken by any organ of the ISA in relation to the proposed activity and EIA. This
process raises the serious question whether the ISA has the ability to impose
restrictions on the proposed activity or to prohibit it.
In summary then, under the existing exploration regime, the submission of some
kind of EIA report (the content largely at the discretion of the contractor) is a
procedural recommendation (only), in certain circumstances. The content of that
EIA is not reviewed by the decision-making bodies within the ISA, nor does it form
evidence or substance on which any permitting or regulatory action can be taken.
The ISA regime currently in place therefore departs widely from the six-stage EIA
process established as good practice world-wide.
47 Such significant regulatory gaps
would appear to interfere materially with the ability of the ISA to protect the marine
environment as required under UNCLOS Article 145.
One reason for this surprising lacuna may be a presumption that EIA processes
will instead be set and enforced by sponsoring States. However, a review of existing
domestic sponsorship laws currently in force
48 does not show evidence that sponsoring States in fact have such rules in place at the national level to cover activities
occuring in the Area. Even if such rules are put in place, unless the ISA requires
harmonisation, relying upon the individual domestic laws for EIA across twenty
different sponsoring State would lead to a patchwork of different and inconsistent
processes and standards.
There may also have been an historic presumption that EIAs and environmental
permitting decisions would occur under Exploitation contracts or at the point of
application for Exploitation, not under Exploration contracts. This presumption has
now been rebutted by the two EIA reports referenced above; nor does such a
44 Email correspondence on file, with staff members of the ISA Secretariat, October 2018.
45 The two EIA reports submitted recently by contractors for a technology-testing activity under an
exploration licence, have been published on the ISA website (https://www.isa.org.jm/environmen
tal-impact-assessments) implying some degree of transparency. But there is no accompanying note.
It is not clear whether these are open for consultation (and if so, by whom, to whom, by what
mechanism, and in what timeframe submissions will be received).
46 Supra, n. 13.
47 The only possible exceptions are a partial (non-mandatory and non-detailed) stage 1 (the screening process that determines which activities will be subject to an environment assessment) and stage
3 (the fact that an EIA report is prepared). There appears to be no requirement in the ISA exploration
regime for stage 2 (scoping), stage 3 (consultation and participation), stage 4 (decision) or stage
5 (follow-up measures).
48 For example, Lily (2018).
18 Regulating the Common Heritage of Mankind: Challenges in Developing a Mining. . . 343