What can ISA do to mitigate/prevent the effects of DSM?

(TBC)

In the preceding sections, the innumerable risks associated with deep-sea interference have
been highlighted, shedding light on the inherent uncertainty attached to DSM. As a result, the
ISA is entrusted with the responsibility of addressing these uncertainties and mitigating the
risks associated with DSM. The latest draft regulations proposed by the ISA recognize that
achieving these goals may be possible vis-à-vis a comprehensive environment management
strategy encompassing targeted research and regional environmental impact assessment. This
section will outline a comprehensive environmental policy framework which can be
incorporated into ISA’s existing strategic plan to systematically reduce uncertainties
whenever feasible and standardize safeguards which ensure environmental harm does not
exceed agreed-upon thresholds. Preliminarily, the ISA’s overarching environmental
management duties are pillared on three obligations1: first, to systematically identify all
pertinent environmental standards and allocate them to the appropriate stakeholders; second,
to integrate strategic environmental management completely into the Mining Code (ISA’s
exploration and exploitation regulations) and the decision-making processes of the ISA; third,
to strive towards prompt implementation of the environmental management measures to
effectively address the environmental concerns.

The implementation of the proposed environment management strategy is enabled by Part XI

of UNCLOS, granting the ISA the authority to establish general and specific policies through
its organs, namely the ISA Assembly and Council, within their respective jurisdictions. Their
jurisdiction extends to inter alia pollution control, flora and fauna protection, and adoption of
‘mining standards and practices, including those related to operational safety, conservation of
the resources and the protection of the marine environment.’ As a result, the ISA is in a
favorable position to formulate and execute a comprehensive environment management
strategy at the policy level for the deep seabed and ocean floor beyond the limits of national
jurisdiction. The subsequent section will examine the ISA’s current strategic plan for
environmental management. Subsequently, the lacunae in the plan shall be identified,
accompanied by a discussion of potential solutions. ISA’s existing framework for marine
environment management may be delineated into three constituents: (i) Regional
Environmental Assessment and Management Plans (REMP); (ii) fostering collaborations
among institutions; (iii) Establishing long-term strategy instead of ad hoc measures.

1
ISA, Towards an ISA environmental management strategy for the area, ISA Technical Study No. 17, 2017.
https://www.isa.org.jm/sites/default/files/files/documents/berlinrep-web.pdf.
(i) Regional Environmental Assessment and Management Plans (REMP)

As per the exploration regulations, the ISA obligated contractors to meet the performative
requirements in relation to environmental impact assessments (EIAs) as well as setting
the relevant baselines and standards for studying the impact of mechanical interference on
the marine environment and biodiversity. However, by incorporating REMPs, the ISA
can develop tailored environmental evaluation protocols and management strategies for
each specific region where deep seabed activities are planned including the Clarion-
Clipperton Zone in the Pacific, Mid Atlantic Ridge system, the Central Indian Ocean, and
many more. This approach would offer additional assistance to contractors through the
involvement of the ISA’s Legal and Technical Commission (LTC), responsible for
conducting assessments of the environmental implications associated with activities in the
designated Area. These regional endeavours would be assimilated within the parameters
of the overarching policy to enhance accountability and establish reliable channels of
communication.

(ii) Inter-institutional collaboration

Although ISA’s jurisdiction is limited to seabed mining, its strategic plan emphasized the
importance of forging strategic alliances and partnerships with relevant sub-regional,
regional, and global organisations. The aim is to enhance cooperation in the conservation
and sustainable utilization of ocean resources, particularly in the realm of marine
scientific research. The plan highlights key collaborators such as the Intergovernmental
Oceanographic Commission of the United Nations Educational, Scientific and Cultural
Organization (UNESCO), the International Atomic Energy Agency (IAEA), the
International Hydrographic Organization, and initiatives like the European Union joint
programming initiative on healthy and productive seas and oceans. In addition, to create
an effective regime of environmental management, healthy relations with regional
fisheries management organisations like the North-East Atlantic Fisheries Commission
(NEAFC) as well as organizations responsible for setting globally recognized
environmental management criteria such as the Secretariat of the Convention on
Biological Diversity (CBD) is required. This multi-sectoral protection of the marine
environment is crucial to fully effect its environmental management policy.

(iii) Long-term strategy

The ISA envisions a long-term strategy for the management of the seabed and ocean floor
beyond the limits of national jurisdictions. This strategy entails a firm commitment to
developing scientifically and statistically robust monitoring programs and methodologies
to assess the potential risk for activities in the Area to interfere with the ecological
balance of the marine environment and appropriate regulations, procedures, monitoring
programs and methodologies to prevent, reduce and control pollution and other hazards to
the marine environment, as well as interference with the ecological balance of the marine
environment, prevent damage to the flora and fauna of the marine environment and
implement the relevant requirements relating to the protection of the marine environment.

Lacunae in ISA’s existing framework (TBC)

The ISA’s proposed environmental management plan has made high-level commitments
but lacks details regarding the operationalization its DSM regime. At a brief glance, it is
clear that the existing management framework lacks overarching environmental
objectives and goals, measurable targets or any mechanism to evaluate the progress made
in its endeavor. Instead of relying solely on the contractors to develop relevant
environment baselines and precautionary buffers, requiring the LTC to formulate
procedures for determining the vulnerability of the proposed mining site and prevent any
further activities where ‘potential for serious and permanent harm exists’, are crucial
steps in operationalizing a precautionary approach. Despite the significance of this
requirement, no procedures have been developed and exploration work has continued as
normal.

Secondly, any robust environmental protection policy requires data. It is impossible to

comprehensively monitor environmental changes caused by mining activities without
knowing the pre-mining environmental conditions and baselines. The ISA Council has
noted that the availability of data is the driver of the development of regional
environmental management plans. Thus, an environment management strategy which
establishes the “prioritization of identified environmental considerations” and specify
minimum data requirements needed to proceed to the exploitation of the deep seabed
would ensure that baselines are of sufficient quality and would provide contractors with
certainty as to the quality and quantity of data they need to collect and process in order to
meet their obligations. These baselines would help to operationalize the standards of
“serious harm” and “significant adverse impact” requires quantitative measurements of a
series of variables, which need to be defined as targets and thresholds for ecological
indicators addressing specific environmental goals and objectives.

Finally, ISA’s current strategic plan fails to generate a structure of task allocation and the
fulfilment of substantive obligations. These include incorporating reformed EIAs with an
additional focus on climate change-related variations and differentiating contractor
obligation through the application of the polluter-pays principle. Specifically, the
codification of standard contract terms requiring contractors to follow an ecosystem
approach while operationalizing ISA’s objectives in a global context. In the development
of these processes, it is essential to clearly differentiate the duties and obligations
allocated to specific actors such as the ISA council, contractors, or sponsoring states.
States such as South Africa have pointed out this absence of ‘elaboration on which organ
of the ISA is to perform which of the functions listed in the plan.’