International Seabed Authority and the Precautionary Principle

Aline L. Jaeckel, Ph.D. (2015), University of New South Wales (UNSW), Australia, is a Research Fellow at Macquarie Law School. She has published in the fields of law of the sea, international law, and environmental law.

"With this book, Dr. Aline Jaeckel successfully overcomes the challenge of delivering what is just as much a reflection on theoretical notions of international environmental law as it is a very pragmatic and concrete case study. In that, she is a pioneer in the discussion of deep seabed mining, contributing to the development of maritime law and bringing the discussion to the next level. [..] Despite the specificity and technicality of the topic, she manages to make it very accessible with a clear and straightforward language. In this respect, this book is a polyvalent and useful tool to be recommended to all researchers, institutions, practitioners or students interested in the matter." - Laura E. Lallier, Maritime Institute, University of Ghent

• AcknowledgementsList of AbbreviationsList of FiguresList of CasesList of Treaties and DeclarationsPART I: CONTEXT – DEEP SEABED MINING, THE MARINE ENVIRONMENT, AND PRECAUTIONChapter 1:Deep Seabed Mining and the Marine Environment1.1Setting the Scene: The Onset of Deep Seabed Mining1.2Exploring the Problem1.2.1The Marine Environment of the Deep Seabed and its Mineral Resources1.2.2The Environmental Risks and Uncertainties of Deep Seabed Mineral Mining1.2.3The Need for a Precautionary Approach to Seabed Mining1.3Objectives of the Study1.4Terminology1.5Methodology and Limits of the Study1.6Structure of the StudyChapter 2:The Precautionary Principle in International Law2.1Introduction2.2The Precautionary Principle in International Law2.2.1From Reactive to Proactive Thinking: the Rationale of Precaution2.2.2History of the Precautionary Principle2.2.3Status of the Precautionary Principle in International Law2.2.4Overlapping Principles: Precaution and Prevention2.3Defining the Precautionary Principle: Three Elements2.3.1Threat of Environmental Harm2.3.2Uncertainty2.3.3Remedial Action2.3.3.1Effectiveness2.3.3.2Proportionality2.3.4The Role of Thresholds2.4Implementing the Precautionary Principle2.4.1The Three Dimensions of Implementing Precaution2.4.1.1Institutional Dimension2.4.1.2Procedural Dimension2.4.1.3Protective Measures2.4.1.4A Three-dimensional Assessment of the Implementation of Precaution2.4.2The Role of Values2.4.2.1Making Uncertainties Explicit2.4.2.2Participation2.4.2.3Transparency2.4.2.4A Normative Framework2.4.3The Burden of Proof2.4.3.1Considerations for a General Allocation of the Burden of Proof2.4.3.2Reversing the Burden of Proof as an Implementation Measure2.4.4The Nature of Uncertainties2.4.5Dealing with Uncertainty in Complex Systems: Adaptive Management2.4.6Examining Counter-Effects: the Aim of Net Environmental Protection2.4.7Socio-Economic Considerations2.5Framework for Analysing the Implementation of the Precaution: Assessment CriteriaPART II: THE INTERNATIONAL SEABED AUTHORITYChapter 3:The International Seabed Authority and the Seabed Mining Regime3.1Introduction3.2Historical Development of the Deep Seabed Mining Regime3.2.1The Legal Status of the International Seabed and its Resources3.2.2The LOSC and Continuing Uncertainty as to the Legal Status of the Seabed and its Resources3.2.3The 1994 Implementing Agreement and the Revision of the Common Heritage Concept3.3Mandate of the ISA3.4Institutional Organisation of the ISA3.4.1The Assembly3.4.2The Council3.4.3The Secretariat3.4.4The Legal and Technical Commission3.4.5The Economic Planning Commission3.4.6The Finance Committee3.4.7The Enterprise3.5Decision-making Processes in the ISA3.5.1Adopting Mining Regulations3.5.2Assessing Applications for Plans of Work3.6Enforcement Powers3.6.1Monitoring Compliance3.6.2Responsibilities and Liability3.7Financing the ISA3.8Dispute Settlement in the ISA Regime: The Seabed Disputes Chamber3.9ConclusionChapter 4:The Environmental Mandate of the ISA4.1Introduction4.2Environmental Considerations During the Negotiations of Part XI and the Implementing Agreement4.3The General Obligation Under the Convention and the Implementing Agreement to Protect and Preserve the Marine Environment4.3.1The Obligation to Protect and Preserve the Marine Environment4.3.2The Environmental Mandate of the ISA4.3.3General Environmental Obligations of States4.4Gradual Integration of Precaution into the LOSC4.5The Debate About Bioprospecting and Marine Scientific Research in the Context of the ISA’s Mandate4.6ConclusionChapter 5:Developing the ISA’s Environmental Mandate Through the Mining Code5.1Introduction5.2Law-making Powers of the ISA5.3The Mining Code5.3.1Exploration Regulations5.3.2LTC Recommendations5.3.3Future Exploitation Regulations5.4The ISA’s Environmental Obligations as Developed by the Mining Code5.4.1Assess and Monitor Environmental Impacts5.4.1.1Environmental Baselines5.4.1.2Environmental Impact Assessments5.4.1.3Monitoring Effects on the Marine Environment5.4.2Marine Protected Areas5.4.2.1Marine Protected Areas in Areas Beyond National Jurisdiction5.4.2.2Mandate of the ISA to Declare Marine Protected Areas5.4.3Best Environmental Practices5.4.4Emergency Orders5.4.5Enforcement and Liability5.4.6Applying a Precautionary Approach5.4.6.1Precautionary Thresholds in the ISA Context5.5ConclusionPART III: IMPLEMENTING PRECAUTION BY THE INTERNATIONAL SEABED AUTHORITYChapter 6:Implementing the Precautionary Principle: Protective Measures6.1Introduction6.2Marine Scientific Research6.2.1Research Regarding Faunal Diversity Associated with Polymetallic Nodules6.2.2Research Regarding Ecosystems Associated with Polymetallic Sulphides and Ferromanganese Crusts6.2.3Discussion About the ISA’s Engagement in Marine Scientific Research6.3Marine Protected Areas6.3.1The Environmental Management Plan for the Clarion-Clipperton Zone6.3.2Environmental Management Plans for Other Areas?6.3.3Multi-Purpose Marine Protected Areas6.3.4Preservation Reference Zones6.3.5Safety Margins6.4Measures Pertaining to Particularly Vulnerable Ecosystems6.5Listing of Particular Activities6.6Emergency Orders6.7Environmental Restoration6.8ConclusionChapter 7:Implementing the Precautionary Principle: Procedural Elements7.1Introduction7.2Assessing Risks and Uncertainties…7.2.1…through Strategic Environmental Assessment7.2.2…in the Context of Assessing New Applications for Exploration Contracts7.2.3…through Environmental Impact Assessments During Exploration Work7.2.3.1The Lack of Environmental Baselines7.2.3.2Procedural Consequences of Environmental Impact Assessments7.2.4Bringing Environmental Impact Assessments in Line with the Precautionary Approach – Some Suggestions7.3Amending Environmental Standards7.3.1Amending Regulations7.3.2Amending Recommendations7.3.3Reviewing a Programme of Activities7.3.4Updating Regional Environmental Management Plans7.3.5Some Suggestions for Changes to the Procedural Framework7.4Ensuring Transparency and Participation7.4.1Transparency7.4.2Public Participation7.4.3Some Suggestions for Ensuring Transparency and Public Participation7.5The Burden of Proof7.5.1The Status Quo in the ISA’s Legal Framework7.5.2The Reversal of the Burden of Proof in Specific Cases7.6Monitoring of Environmental Effects7.6.1Monitoring Programme for Contractors7.6.2Monitoring the Environmental Effects of Protective Measures7.6.3Monitoring Environmental Effects on a Regional Scale7.7ConclusionChapter 8:Implementing the Precautionary Principle: Institutional Aspects8.1Introduction8.2Institutional Mechanisms for Implementing Precaution8.2.1Mechanisms for the Assessment of Environmental Risks and Protective Measures8.2.2Mechanisms for Ensuring Compliance8.3Current Institutional Limitations8.3.1Capacity and Limitations of the Legal and Technical Commission8.3.2Capacity and Limitations of the ISA Secretariat8.4Options for Institutional Innovation for the ISA8.4.1An Environmental Commission8.4.2A Mining Inspectorate8.5ConclusionChapter 9:Conclusion9.1The Complexities of Implementing the Precautionary Principle9.2The Strengths and Weaknesses of the ISA’s Current Approach to Precaution9.2.1Absence of a Conservation Objective9.2.2Lack of Obligation to Identify Uncertainties9.2.3Strength Derived from Affording Scientific Information a Central Role9.2.4Procedural Challenges Associated with Environmental Impact Assessments and Adaptive Management9.2.5Lack of Strategic Vision9.2.6Successes and Challenges with Respect to Timely Action9.2.7Successes and Challenges with Respect to the Role of the ISA in Marine Scientific Research9.2.8Conclusion9.3Strengthening the Implementation of the Precautionary Principle by the ISA: Suggestions for a Way ForwardBIBLIOGRAPHYINDEX