as the ‘Lost City’, has already been identified as an EBSA under the CBD.
63 It
should be noted, however, that while exploration licenses are granted for a vast area,
it is expected that a subsequent exploitation license will only cover a fraction of the
area that has been explored.
64
Although having more tools in the toolbox could give a cluttered, arbitrary or
inefficient impression, it could also be seen as providing more avenues for solutions
or alternative options. On the one hand, having multiple forums dealing with a
common subject matter could lead to the phenomenon of ‘forum shopping’ or
‘regime shifting’, where States choose to introduce related issues in different forums
where they perceive their interests would be better advanced. One example is
whaling States choosing to pursue the regulation of whaling through the mechanics
of the Convention on International Trade in Endangered Species 1973 (CITES),
which allows for more favourable outcomes in line with their interests, as opposed to
doing so under the prevailing instrument for whaling, the International Convention
for the Regulation of Whaling 1946 (ICRW), where they risk achieving a less
favourable outcome.
65 On the other hand, however, in some cases of coinciding
jurisdiction, agenda setting, implementation and enforcement could be more effective under one regime as opposed to another. This can be seen in the following
instance of ocean fertilization.
Ocean fertilization is a specific climate engineering technique that attempts to
enhance the capacity of the oceans as a carbon sink through the introduction of
nutrients such as iron. Three separate regimes have been involved in regulating this
subject, namely the LC/LP, the CBD, and the IOC. While the LC/LP regime
(on ocean dumping) took up the subject of ocean fertilization as a matter of concern
and agreed to assume competence over its governance in 2007, it was the Conference
of Parties to the CBD in 2008 that first requested its member States to not undertake
ocean fertilization activities until there is an adequate scientific basis to justify its
deployment. Later in 2008, the governing bodies of the LC/LP regime passed a
resolution to prohibit the deployment of ocean fertilization activities other than
legitimate scientific research. In 2009 and 2010, the subject of ocean fertilization
was raised at the IOC, whereby member States agreed that the precautionary
approach favours a prohibition over ocean fertilization activities, as the present
state of scientific understanding is insufficient to support its usage. The IOC thus
decided to remain active in the discourse by providing scientific and technical advice
to its member States, as well as to play an active role in the discussions at the LC/LP
regime.
66
63 International Institute for Sustainable Development (2017).
64 Accordingly, upon greater reflection, the granting of a mineral exploration license in that part of
the Area might not be contrary to its status as an EBSA, provided a license for exploitation is not
granted over the said area subsequently. Given the status of the area as an EBSA, it seems to be
unlikely that the ISA will eventually grant an exploitation license over that area.
65 Gillespie (2002).
66 Williamson et al. (2012), Markus and Ginzky (2011), Scott (2013) and IMO (2019).
3 International Organizations and the Protection of the Marine Environment
51
63 It
should be noted, however, that while exploration licenses are granted for a vast area,
it is expected that a subsequent exploitation license will only cover a fraction of the
area that has been explored.
64
Although having more tools in the toolbox could give a cluttered, arbitrary or
inefficient impression, it could also be seen as providing more avenues for solutions
or alternative options. On the one hand, having multiple forums dealing with a
common subject matter could lead to the phenomenon of ‘forum shopping’ or
‘regime shifting’, where States choose to introduce related issues in different forums
where they perceive their interests would be better advanced. One example is
whaling States choosing to pursue the regulation of whaling through the mechanics
of the Convention on International Trade in Endangered Species 1973 (CITES),
which allows for more favourable outcomes in line with their interests, as opposed to
doing so under the prevailing instrument for whaling, the International Convention
for the Regulation of Whaling 1946 (ICRW), where they risk achieving a less
favourable outcome.
65 On the other hand, however, in some cases of coinciding
jurisdiction, agenda setting, implementation and enforcement could be more effective under one regime as opposed to another. This can be seen in the following
instance of ocean fertilization.
Ocean fertilization is a specific climate engineering technique that attempts to
enhance the capacity of the oceans as a carbon sink through the introduction of
nutrients such as iron. Three separate regimes have been involved in regulating this
subject, namely the LC/LP, the CBD, and the IOC. While the LC/LP regime
(on ocean dumping) took up the subject of ocean fertilization as a matter of concern
and agreed to assume competence over its governance in 2007, it was the Conference
of Parties to the CBD in 2008 that first requested its member States to not undertake
ocean fertilization activities until there is an adequate scientific basis to justify its
deployment. Later in 2008, the governing bodies of the LC/LP regime passed a
resolution to prohibit the deployment of ocean fertilization activities other than
legitimate scientific research. In 2009 and 2010, the subject of ocean fertilization
was raised at the IOC, whereby member States agreed that the precautionary
approach favours a prohibition over ocean fertilization activities, as the present
state of scientific understanding is insufficient to support its usage. The IOC thus
decided to remain active in the discourse by providing scientific and technical advice
to its member States, as well as to play an active role in the discussions at the LC/LP
regime.
66
63 International Institute for Sustainable Development (2017).
64 Accordingly, upon greater reflection, the granting of a mineral exploration license in that part of
the Area might not be contrary to its status as an EBSA, provided a license for exploitation is not
granted over the said area subsequently. Given the status of the area as an EBSA, it seems to be
unlikely that the ISA will eventually grant an exploitation license over that area.
65 Gillespie (2002).
66 Williamson et al. (2012), Markus and Ginzky (2011), Scott (2013) and IMO (2019).
3 International Organizations and the Protection of the Marine Environment
51