3.3 Other Potential Environmental Management Gaps
REMPs present another potential lacuna in the draft Exploitation Regulations.
Although clearly stated as a priority for the ISA Secretariat,
56 REMPs are only
mentioned in the draft Exploitation Regulations briefly.
57 There are no requirements
for how REMPs should be developed, what they should contain, or how they should
be used by the ISA in its decision-making. Without more robust regulatory backing,
it is hard to see how the REMPs could be effective (for example in safeguarding
protected areas).
The Exploitation Regulations also do not encompass ISA-coordinated Strategic
Environment Assessment: a systematic process for evaluating the long-term environmental consequences and other impacts of multiple actions or plans, policies,
legislation within a certain site or ecosystem or policy area)
58 which should inform
the REMPs, and within which individual contractor EIAs can be framed.
Another notable absence is detailed rules concerning liability standards and
procedures, in the event of environmental harm. Draft Regulation 52 does establish
a new Environmental Liability Trust, and the standard contract clauses annexed to
the draft Exploitation Regulations do reiterate UNCLOS’ provision as to contractors
and the ISA being liable for the actual amount of damage arising from any respective
wrongdoing.
59 But the draft Exploitation Regulations are otherwise silent as to
aspects that would make any liability regime functionally operable at the international level, for example: who could make a claim, from whom, in what forum, for
what, and when?
60
Stakeholder comments on the draft Regulations have highlighted additional
concerns, for example: (i) a need to bolster provisions on preventing transboundary
harm and protecting the interests of coastal states who neighbour potential ISA
mining sites
61 ; (ii) whether the current process enables the ISA to obtain impartial
and best available scientific advice to inform decision-making
62 ; (iii) strengthening
56 Preliminary strategy for the development of regional environmental management plans for the
Area ISBA/24/C/3 available at: https://www.isa.org.jm/document/isba24c3.
57 Draft Regulations on Exploitation of Mineral Resources in the Area ISBA/24/LTC/WP.1/Rev.1,
draft Regulation 2(5), 46 bis(3)(c), 46 ter (3)(b), Annex VIII paragraph 1.
58 SPC, 2011 ‘Pacific-ACP States Regional Legislative and Regulatory Framework for Deep Sea
Minerals Exploration and Exploitation’, available at: http://dsm.gsd.spc.int/public/files/2014/
RLRF2014.pdf.
59 Draft Regulations on Exploitation of Mineral Resources in the Area ISBA/24/LTC/WP.1/Rev.1,
draft Regulation 52 and Annex X section 7.
60 This issue is the subject of a number of papers prepared by a Legal Working Group co-convened
by the ISA, Centre for International Governance Innovation, and the Commonwealth Secretariat,
available at: https://www.cigionline.org/series/liability-issues-deep-seabed-mining-series.
61 Supra, n. 50. For example, the submissions from the African Group, Jamaica, Nauru, Federated
States of Micronesia, Tonga, Deep Sea Conservation Coalition, Singh/Pouponneau.
62 Supra n. 50. For example, the submissions from Tonga, Belgium, Morocco, Australia, Sargasso
Sea Commission, Deep Ocean Stewardship Initiative, and Deep Sea Conservation Coalition.
346
H. Lily and S. E. Roady
REMPs present another potential lacuna in the draft Exploitation Regulations.
Although clearly stated as a priority for the ISA Secretariat,
56 REMPs are only
mentioned in the draft Exploitation Regulations briefly.
57 There are no requirements
for how REMPs should be developed, what they should contain, or how they should
be used by the ISA in its decision-making. Without more robust regulatory backing,
it is hard to see how the REMPs could be effective (for example in safeguarding
protected areas).
The Exploitation Regulations also do not encompass ISA-coordinated Strategic
Environment Assessment: a systematic process for evaluating the long-term environmental consequences and other impacts of multiple actions or plans, policies,
legislation within a certain site or ecosystem or policy area)
58 which should inform
the REMPs, and within which individual contractor EIAs can be framed.
Another notable absence is detailed rules concerning liability standards and
procedures, in the event of environmental harm. Draft Regulation 52 does establish
a new Environmental Liability Trust, and the standard contract clauses annexed to
the draft Exploitation Regulations do reiterate UNCLOS’ provision as to contractors
and the ISA being liable for the actual amount of damage arising from any respective
wrongdoing.
59 But the draft Exploitation Regulations are otherwise silent as to
aspects that would make any liability regime functionally operable at the international level, for example: who could make a claim, from whom, in what forum, for
what, and when?
60
Stakeholder comments on the draft Regulations have highlighted additional
concerns, for example: (i) a need to bolster provisions on preventing transboundary
harm and protecting the interests of coastal states who neighbour potential ISA
mining sites
61 ; (ii) whether the current process enables the ISA to obtain impartial
and best available scientific advice to inform decision-making
62 ; (iii) strengthening
56 Preliminary strategy for the development of regional environmental management plans for the
Area ISBA/24/C/3 available at: https://www.isa.org.jm/document/isba24c3.
57 Draft Regulations on Exploitation of Mineral Resources in the Area ISBA/24/LTC/WP.1/Rev.1,
draft Regulation 2(5), 46 bis(3)(c), 46 ter (3)(b), Annex VIII paragraph 1.
58 SPC, 2011 ‘Pacific-ACP States Regional Legislative and Regulatory Framework for Deep Sea
Minerals Exploration and Exploitation’, available at: http://dsm.gsd.spc.int/public/files/2014/
RLRF2014.pdf.
59 Draft Regulations on Exploitation of Mineral Resources in the Area ISBA/24/LTC/WP.1/Rev.1,
draft Regulation 52 and Annex X section 7.
60 This issue is the subject of a number of papers prepared by a Legal Working Group co-convened
by the ISA, Centre for International Governance Innovation, and the Commonwealth Secretariat,
available at: https://www.cigionline.org/series/liability-issues-deep-seabed-mining-series.
61 Supra, n. 50. For example, the submissions from the African Group, Jamaica, Nauru, Federated
States of Micronesia, Tonga, Deep Sea Conservation Coalition, Singh/Pouponneau.
62 Supra n. 50. For example, the submissions from Tonga, Belgium, Morocco, Australia, Sargasso
Sea Commission, Deep Ocean Stewardship Initiative, and Deep Sea Conservation Coalition.
346
H. Lily and S. E. Roady