provisions that require stakeholder participation and reasoned, objective decisionmaking
63
; and (iv) clearer identification as to what regulatory functions are expected
to be undertaken by sponsoring States and flag States, rather than the ISA.
64
Each of these gaps in the currently-proposed regulatory regime could impinge the
ability of the ISA to perform its Article 145 duties to protect the marine environment.
3.4 Standards and Guidelines
The ISA Secretariat has explained that the previous draft Exploitation Regulations
were significantly reduced in length in its 2017 reiteration, to achieve a more
‘streamlined and concise’ form, with the idea that more technical detail should be
housed elsewhere, in order to facilitate flexibility and evolution of the rules as time
and knowledge advance.
65 As such, the draft Regulations are now pitched at highlevel principles, on the basis that there will be a separate suite of ‘Standards and
Guidelines’ that will provide the prescriptive detail for environmental management
aspects of the regulatory regime. Standards will be recommended by the LTC and
approved by the Council.
66 Guidelines will be technical in nature, and can be issued
directly by the LTC or the Secretary-General, although the Council can intervene if it
does not agree with the content of a Guideline.
67 This seems a sensible approach
from a pragmatic and regulatory perspective, but currently little is known about key
aspects of the proposed Standards and Guidelines regime: What areas will be
covered? How will new Standards and Guidelines be triggered? Who will feed
into their content? What will their status be (binding/non-binding), and who will
determine this?
68 Can contractors be required to adhere to Standards and Guidelines
introduced after their contract has been issued?
Settling the specifics of the content of Standards and Guidelines is also likely to
be a mammoth task. Topics such as ‘definition of good industry practice’, ‘what
constitutes serious harm’,
69
‘how to apply adaptive management’ have long taxed
63 Supra n. 50. For example, the submissions from the Africa Group, Australia, Morocco,
New Zealand, Deep Ocean Stewardship Initiative, Deep Sea Conservation Coalition.
64 Supra n. 50. For example, the submissions from the African Group, Morocco, Nauru, Jamaica,
Singapore, and Tonga.
65 Para. 3, ISBA/23/C/12: Draft regulations the exploitation of minerals resources in the Area, note
by the ISA Secretariat, August 2017, available at: https://ran-s3.s3.amazonaws.com/isa.org.jm/s3fspublic/files/documents/isba-23c-12_2.pdf.
66 Supra, n. 51, draft Regulation 92.
67 Supra, n. 51, draft Regulation 93.
68 The ISA Secretariat has suggested that “While standards can in principle be considered mandatory and guidelines recommendatory in nature, the legal status of each will be determined largely
by their content.” ISBA/24/LTC/6, supra, n. 55.
69 This subject was the topic of a workshop, whose resulting publication while providing extremely
helpful discussion, also rather shows that even a small group of reasonably like-minded and
18 Regulating the Common Heritage of Mankind: Challenges in Developing a Mining. . . 347
63
; and (iv) clearer identification as to what regulatory functions are expected
to be undertaken by sponsoring States and flag States, rather than the ISA.
64
Each of these gaps in the currently-proposed regulatory regime could impinge the
ability of the ISA to perform its Article 145 duties to protect the marine environment.
3.4 Standards and Guidelines
The ISA Secretariat has explained that the previous draft Exploitation Regulations
were significantly reduced in length in its 2017 reiteration, to achieve a more
‘streamlined and concise’ form, with the idea that more technical detail should be
housed elsewhere, in order to facilitate flexibility and evolution of the rules as time
and knowledge advance.
65 As such, the draft Regulations are now pitched at highlevel principles, on the basis that there will be a separate suite of ‘Standards and
Guidelines’ that will provide the prescriptive detail for environmental management
aspects of the regulatory regime. Standards will be recommended by the LTC and
approved by the Council.
66 Guidelines will be technical in nature, and can be issued
directly by the LTC or the Secretary-General, although the Council can intervene if it
does not agree with the content of a Guideline.
67 This seems a sensible approach
from a pragmatic and regulatory perspective, but currently little is known about key
aspects of the proposed Standards and Guidelines regime: What areas will be
covered? How will new Standards and Guidelines be triggered? Who will feed
into their content? What will their status be (binding/non-binding), and who will
determine this?
68 Can contractors be required to adhere to Standards and Guidelines
introduced after their contract has been issued?
Settling the specifics of the content of Standards and Guidelines is also likely to
be a mammoth task. Topics such as ‘definition of good industry practice’, ‘what
constitutes serious harm’,
69
‘how to apply adaptive management’ have long taxed
63 Supra n. 50. For example, the submissions from the Africa Group, Australia, Morocco,
New Zealand, Deep Ocean Stewardship Initiative, Deep Sea Conservation Coalition.
64 Supra n. 50. For example, the submissions from the African Group, Morocco, Nauru, Jamaica,
Singapore, and Tonga.
65 Para. 3, ISBA/23/C/12: Draft regulations the exploitation of minerals resources in the Area, note
by the ISA Secretariat, August 2017, available at: https://ran-s3.s3.amazonaws.com/isa.org.jm/s3fspublic/files/documents/isba-23c-12_2.pdf.
66 Supra, n. 51, draft Regulation 92.
67 Supra, n. 51, draft Regulation 93.
68 The ISA Secretariat has suggested that “While standards can in principle be considered mandatory and guidelines recommendatory in nature, the legal status of each will be determined largely
by their content.” ISBA/24/LTC/6, supra, n. 55.
69 This subject was the topic of a workshop, whose resulting publication while providing extremely
helpful discussion, also rather shows that even a small group of reasonably like-minded and
18 Regulating the Common Heritage of Mankind: Challenges in Developing a Mining. . . 347