Marine Policy 114 (2020) 103423

Contents lists available at ScienceDirect

Marine Policy
journal homepage: www.elsevier.com/locate/marpol

Strategic environmental planning for deep seabed mining in the area T

Aline Jaeckel
Macquarie Law School, Centre for Environmental Law, Macquarie University Marine Research Centre, Macquarie University, NSW, 2109, Australia

ARTICLE INFO ABSTRACT

Keywords: Discussions about an environmental management strategy for deep seabed mining in the Area have been un-
Seabed mining derway for a number of years. Both states and scientists have called for such an environmental management
Environmental management strategy strategy. In 2018, the International Seabed Authority has adopted its first 5-year strategic plan, covering all
Strategic plan aspects of its mandate. This article examines whether the new strategic plan integrates elements of an en-
International seabed authority
vironmental management strategy and what might be missing. It demonstrates that while some overlaps exist,
Environmental management
there are several key gaps left by the current strategic plan which could be filled by an environmental man-
agement strategy. These include the development of environmental goals and objectives, a systematic approach
to environmental regulation and management, setting priorities, filling gaps in substantive obligations, and
allocating environmental management tasks to specific actors.

1. Introduction behalf of humankind as a whole to give effect to the special legal status
of the Area and its resources as the ‘common heritage of mankind’.7
Mining the deep oceans for minerals, such as cobalt and nickel, is an The ISA is currently developing the first international regulations
emerging industry that carries significant risks to the marine environ- for the commercial-scale exploitation of minerals in the Area [4]. While
ment [1–3]. Regulating these risks falls under the responsibilities of the mineral exploration has been conducted for over 15 years, no ex-
International Seabed Authority (ISA).1 Established under the UN Con- ploitation has been carried out as yet. The ISA's future exploitation
vention on the Law of the Sea (LOSC),2 the ISA regulates, controls, and regulations will ultimately enable exploitation to start.
administers all mineral resources on the international seabed,3 known A key challenge in developing the exploitation regulations is the
as the ‘Area’.4 In doing so, the ISA must take ‘necessary measures […] to lack of scientific knowledge about the precise effects of mining on the
ensure effective protection for the marine environment from harmful marine environment and measures to reduce, and where possible
effects’ of seabed mining.5 Indeed, addressing the protection and pre- eliminate, adverse effects. While the general impacts of seabed mining,
servation of the marine environment is a priority task for the ISA under such as habitat destruction, reduction of biodiversity, and the creation
the 1994 Agreement Relating to the Implementation of Part XI of the United of sediment plumes, can be predicted, the precise ramifications for
Nations Convention on the Law of the Sea.6 Moreover, the ISA must act on ecosystem structure and functioning remain uncertain [2,3,5,6].

E-mail address: [email protected].

1
United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3 (‘LOSC’), article 145.
2
LOSC, article 156.
3
LOSC, article 153(1).
4
The term Area is defined as ‘the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction’ under article 1(1)(1) of the LOSC.
5
LOSC, article 145.
6
Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea (adopted 28 July 1994, entered into force 28 July 1996)
1836 UNTS 3, annex section 1(5)(g).
7
LOSC, articles 136, 137.

https://doi.org/10.1016/j.marpol.2019.01.012
Received 28 September 2018; Received in revised form 2 January 2019; Accepted 23 January 2019
Available online 07 February 2019
0308-597X/ © 2019 The Author. Published by Elsevier Ltd. This is an open access article under the CC BY-NC-ND license
(http://creativecommons.org/licenses/by-nc-nd/4.0/).
A. Jaeckel Marine Policy 114 (2020) 103423

In light of these risks and uncertainties, a strategic approach to In light of the above, it is timely to ask whether the ISA’s new
environmental regulation and management is needed. This would help strategic plan integrates elements of an environmental management
to systematically reduce uncertainties where possible, including strategy, whether these are sufficient, and what might be missing. The
through targeted research and regional and strategic environmental present paper seeks to address these questions.
impact assessments [7–9], while at the same time setting in place reg- Section 2 summarises the case for an environmental management
ulatory safeguards to ensure environmental harm does not exceed strategy while section 3 provides a brief overview of the ISA’s recently
agreed thresholds. adopted strategic plan. Section 4 then discusses the elements of an
A strategic approach would also support the implementation of a environmental management strategy that overlap with, and are already
precautionary approach, which the ISA is required to adopt [8,10].8 A reflected in, the ISA’s strategic plan while section 5 discusses those that
precautionary approach requires the ISA to err on the side of caution are missing and would require attention. Section 6 offers concluding
and take early measures to protect the environment from risk, even if remarks.
uncertainties remain [10,11]. This involves incorporating precau-
tionary buffers into environmental planning and ensuring that en- 2. The case for an environmental management strategy
vironmental measures are not overlooked in the rush to enable com-
mercial-scale mineral exploitation, which in turn requires strategic The ISA has set a number of requirements in line with its obligation
planning. It also involves furthering strategically selected research to to ensure effective protection of the marine environment from adverse
reduce scientific uncertainty [12,13]. effects of seabed mining. Among these, the exploration regulations re-
An environmental management strategy is an appropriate tool to quire environmental baselines at exploration sites,10 although im-
support regulatory development in the face of uncertainty. Indeed, an plementing this requirement remains a challenge [21,22]. Moreover,
environmental management strategy for seabed mining has been dis- specific exploration activities, such as testing of mining equipment,
cussed for a number of years [14,15]. Both states9 and scientists [7,16] require a prior submission of an environmental impact assessment.11
have called for an environmental management strategy. The ISA’s latest These measures are to be taken by the contractors, namely those public
draft regulations for mineral exploitation foresee an ‘environmental or private entities holding an exploration contract with the ISA.
policy’ for the ISA [17] and the ISA’s technical advisory body, the Legal However, while some environmental measures can and should be
and Technical Commission (LTC), ‘notes the importance of developing applied by contractors, other measures exceed the capacity of in-
an overarching environmental policy framework’ [18], albeit without dividual contractors and instead require commitment and action by the
specifying any details. ISA as a whole. Examples are the establishment of pre-mining regional
While the terminology may vary, the idea behind these calls seems baselines, integrated assessments of impacts from multiple sources and
to be the development of a policy-level strategy or plan for environ- over long time scales, and regional-scale environmental management,
mental management of deep seabed mining across the Area. Such a such as through the Environmental Management Plan for the Clarion-
policy-level document would inform both regional as well as project- Clipperton Zone.12
specific environmental management. The need for regional environmental management is widely ac-
In July 2018, the ISA took an important step by adopting its first knowledged [23,24] and efforts are underway to develop regional en-
strategic plan for all aspects of its work [19]. The plan sets out strategic vironmental management plans (REMPs) for seabed mining beyond the
directions for the period 2019-2023 and seeks to align the ISA’s work Clarion-Clipperton Zone [4,24,25]. However, there remains a lack of
with the UN Sustainable Development Goals, in particular goal 14 on environmental management at policy-level, as was noted by the ISA
conserving and sustainably using the oceans [20]. It may be seen as a Council [4] and discussed at the March 2017 workshop titled ‘Towards
key step in the ISA’s quest to become a more open and collaborative an ISA Environmental Management Strategy for the Area’ [14]. Indeed,
organisation that builds strategic alliances and partnerships with other the ISA Council has invited the LTC, when revising the draft exploita-
organisations working on marine issues. tion regulations, to ‘consider making regional environmental manage-
ment plans mandatory and include those plans in the overarching en-
vironmental policy’ [26]. The Council also suggested factoring REMPs
8
ISA, Regulations on Prospecting and Exploration for Polymetallic Nodules in the into environmental impact assessments and the assessment of new ap-
Area, ISBA/6/A/18 (13 July 2000), amended by ISBA/19/C/17 (22 July 2013), plications for approval of plans of work, which would create a much-
ISBA/19/A/12 (25 July 2013), and ISBA/20/A/9 (24 July 2014) (‘Nodules needed link between regional-scale and project-scale environmental
Exploration Regulations’), regulations 2(2), 5(1), 31(2) and (5); ISA, Regulations management [26]. In addressing these suggestions, an overarching
on Prospecting and Exploration for Polymetallic Sulphides in the Area, ISBA/16/A/ environmental management strategy could clarify the role of, and re-
12/Rev.1 (15 November 2010), amended by ISBA/19/A/12 (25 July 2013) and quirements for, REMPs and situate them within an overall environ-
ISBA/20/A/10 (24 July 2014) (‘Sulphides Exploration Regulations’), regulations
mental policy of the ISA.
2(2), 5(1), 33(2) and (5); ISA, Regulations on Prospecting and Exploration for
In addition, there are several current challenges that could be ad-
Cobalt-rich Ferromanganese Crusts in the Area, ISBA/18/A/11 (27 July 2012),
amended by ISBA/19/A/12 (25 July 2013) (‘Crusts Exploration Regulations’), dressed by an environmental management strategy, which are elabo-
regulations 2(2), 5(1), 33(2) and (5); Responsibilities and Obligations of States rated on in section 5 below. First, there is a need for a systematic ap-
Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory proach to environmental regulation and management to ensure existing
Opinion) (Seabed Disputes Chamber, Case No 17, 1 February 2011), paragraphs requirements are fully implemented, such as the need to assess the
131–132; ISA, Environmental Management Plan for the Clarion-Clipperton Zone, cumulative impacts of several mine sites as well as other human ac-
ISBA/17/LTC/7 (13 July 2011), paragraph 13. tivities.13 Moreover, given the range of environmental assessments and
9
At the ISA’s 24th session in March 2018, Jamaica stressed the importance of
establishing an environment management strategy (see iisd Reporting Services,
10
ISA-24 Part I # 5 Highlights: Thursday, 8 March 2018, Earth Negot. Bull. 25 Nodules Exploration Regulations, regulations 18(b), 32. Sulphides Exploration
(2018) 1–2. http://enb.iisd.org/download/pdf/enb25156e.pdf). Tonga sug- Regulations, regulations 24(b); 34. Crusts Exploration Regulations, regulations
gested the development of an environmental policy framework (see iisd 24(b); 34.
11
Reporting Services, Summary of the Twenty-Fourth Annual Session of the All Exploration Regulations, annex IV section 5.2; ISA, Recommendations for
International Seabed Authority (First Part) 5–9 March 2018, Earth Negot. Bull. the guidance of contractors for the assessment of the possible environmental impacts
25 (2018) 1–9. http://enb.iisd.org/download/pdf/enb25157e.pdf. See also arising from exploration for marine minerals in the Area, ISBA/19/LTC/8 (1 March
Kingdom of the Netherlands, Submission on the ISA Draft Strategic Plan for 2013), paragraph 19.
12
2019-2023, https://www.isa.org.jm/files/documents/EN/SPlan/Subs/ Environmental Management Plan for the Clarion-Clipperton Zone (n 8).
13
Netherlands.pdf, 2018, paragraph 13. Recommendations for the guidance of contractors for the assessment of the

2
A. Jaeckel Marine Policy 114 (2020) 103423

measures that should be performed before any mining can begin, there periodic review of the seabed mining regime pursuant to Article 154 of
is a need to identify priorities. the LOSC, which was undertaken between 2015 and 2017.23 As one of
Second, there are remaining gaps in the substantive obligations for the outcomes of the review, the Assembly requested the Secretary-
the ISA and contractors. These include the consideration of how climate General to develop a draft strategic plan for the ISA in which to define
change is likely to alter relevant marine ecosystems and ecosystem its directions and aims [28]. A draft strategic plan was published in
services over the lifetime of a mining operation [14,27]. February 2018 [29] and stakeholder input was sought. The plan was
Third, an environmental management strategy could clarify the role revised in light of stakeholder submissions and discussion at the ISA’s
of each actor in ensuring environmental protection. The ISA regime 2018 session and a final strategic plan was adopted in July 2018 [19].
involves a number of relevant actors: (a) contractors, who are re- The strategic plan sets out the current challenges for the ISA, a list of
sponsible for site-specific environmental management measures; (b) the expected outcomes for the period 2019 to 2023, and the following nine
ISA Council as the executive organ of the ISA14; (c) the ISA Assembly as strategic directions [19]:
the plenary organ of the ISA15; and (d) the LTC as the legal and tech-
nical advisory body which plays a key role in developing environmental 1. realize the role of the ISA in a global context;
standards for seabed mining in the Area.16 In addition, the regime in- 2. strengthen the regulatory framework for activities in the Area;
volves sponsoring states17 that are responsible for ensuring that the 3. protect the marine environment;
contractors they sponsor comply with their respective obligations under 4. promote and encourage marine scientific research in the Area;
the ISA regime.18 5. build capacity for developing states;
In addressing the aforementioned challenges, an environmental 6. ensure fully integrated participation by developing states;
management strategy could have the following potential aims [14]: 7. ensure equitable sharing of financial and other economic benefits;
8. improve the organisational performance of the ISA; and
(1) to ensure all relevant environmental standards and measures are 9. commit to transparency.
identified in a systematic manner and allocated to the appropriate
actors; Through stakeholder input on the draft plan, at least three aspects
(2) to ensure strategic environmental management is fully integrated were highlighted. First, the principle of the common heritage of hu-
into the Mining Code as well as the ISA’s decision-making processes mankind needed to be reflected in the plan as a core guiding principle
and supported by institutional capacity; and integral to the mission statement of the ISA [30–34].
(3) to ensure environmental management measures are given effect in a Second, the language used in the plan needed to be in line with the
timely manner. LOSC and the 1994 Implementing Agreement and avoid terms that
deviate significantly from the LOSC, such as ‘commercially viable fra-
The legal basis for an environmental management strategy is dis- mework for environmental management’ and ‘the highest practicable
cussed in the literature [15] and derived from the LOSC, which equips standards of protection of the marine environment and human health
the ISA Assembly and Council respectively with the power to establish and safety’ [29–31,33–35]. The final strategic plan was amended ac-
the general and specific policies of the ISA ‘on any question or matter cordingly.
within the competence of the Authority.‘19 The ISA’s competence en- Third, the draft strategic plan was criticised for lacking measurable
compasses inter alia control of pollution,20 prevention of damage to targets, milestone, and time-bound deliverables [31,35,36]. To address
flora and fauna,21 and adoption of ‘mining standards and practices, this, the ISA Assembly requested for the plan to be supplemented by a
including those relating to operational safety, conservation of the re- high-level action plan which is to include key performance indicators
sources and the protection of the marine environment.‘22 and a list of outputs for the 5-year period of the plan [19]. This action
Having far-reaching powers and competences as well as exclusive plan is currently being developed and could provide more detail as to
jurisdiction over mineral activities in the Area, the ISA is well-posi- how the ISA seeks to achieve its strategic directions, which will also
tioned to develop and implement a policy-level environmental man- provide an indication as to where its priorities lie.
agement strategy for the Area. In 2017/2018, a priority task for the ISA Unsurprisingly, stakeholder submissions differed in their assessment
was the development of its first overall strategic plan, covering all as- of whether enabling commercial-scale mining should be the primary
pects of the ISA’s mandate, including some environmental matters. The focus of the ISA, or whether this aim should be balanced with other
following section introduces that plan. considerations. In the words of Algeria, on behalf of the African Group:
‘Parts of the draft Strategic Plan (such as paragraph 3, page 3), could
3. The ISA’s new strategic plan be read as if the Authority’s aim is to develop Exploitation
Regulations that encourage deep-sea mining. In our view, a proper
The ISA adopted its first strategic plan in July 2018, following a reading of the UNCLOS and the Authority’s mandate is for the
year-long process to develop it. The plan has its origin in the first Authority to develop Regulations that enable exploitation in the
Area to occur only insofar as there would be (net) benefit to man-
kind as a whole. This must take into account all parameters set by
(footnote continued) the UNCLOS, including the effective protection of the marine en-
possible environmental impacts arising from exploration for marine minerals in
vironment, and ensuring optimum revenues for the Authority for
the Area (n 11), paragraph 16; Environmental Management Plan for the Clarion-
equitable sharing, in accordance with the UNCLOS’ [30].
Clipperton Zone (n 8), paragraphs 37, 40, 51.
14
LOSC, article 162; 1994 Implementing Agreement, annex sections Belgium supported this view by noting that ‘commercial certainty
1(15)–(16) and 3(11). should not be guaranteed at a significant disproportionate cost for the
15
LOSC, articles 159, 160; 1994 Implementing Agreement, annex section environment’, stressing that ‘[s]ufficient environmental protection is
3(1).
16 fundamental on its own’ [35]. Chile stressed the need to clarify what
LOSC, article 165.
17 happens if scientific studies recommend the cessation of mineral ex-
LOSC, article 153(2).
18
LOSC, article 139. ploitation [37]. A consortium of 38 NGOs called for a fundamental
19
LOSC, articles 160(1), 162(1).
20
LOSC, article 145.
21 23
LOSC, article 145. See https://www.isa.org.jm/article-154-periodic-review-international-
22
LOSC, annex III article 17. seabed-authority.

3
A. Jaeckel Marine Policy 114 (2020) 103423

debate about whether deep seabed mining is in the best interest of of multi-sectoral management.26
humankind as a whole [38]. The ISA’s strategic plan foresees ‘strategic alliances and partnerships
In contrast, some contractors argued for the ‘need for timely with relevant subregional, regional and global organizations with a
adoption of a commercially viable exploitation code’ [39] and for ‘[f] view to more effective cooperation in the conservation and sustainable
acilitating sustainable commer[cial] development of the Area’ [40]. The use of ocean resources’, in particular with respect to marine scientific
final plan reflects the usual balancing act of recognising both views. research [19]. The plan lists some example organisations for coopera-
tion, including the Intergovernmental Oceanographic Commission of
4. Overlaps between the strategic plan and an environmental the United Nations Educational, Scientific and Cultural Organization
management strategy (UNESCO), the International Atomic Energy Agency (IAEA), the Inter-
national Hydrographic Organization, and collaborative programmes
In light of the calls for an environmental management strategy for such as the European Union joint programming initiative on healthy
the ISA, it seems timely to ask whether the ISA’s new strategic plan and productive seas and oceans (JPI Oceans) [19].
already encompasses elements of an environmental management While cooperation regarding scientific research is undoubtedly im-
strategy and what gaps remain. The following sections discuss three portant, effective environmental management would also require co-
overlaps before analysing a number of gaps. The three overlaps are: (a) operation with regional fisheries management organisations as well as
regional environmental assessment and management, (b) inter-institu- organisations that establish global criteria for environmental manage-
tional collaboration, and (c) moving beyond ad hoc measures. ment, such as the Secretariat of the Convention on Biological Diversity.
An example of such cooperation is the proposal from the North-East
Atlantic Fisheries Commission (NEAFC) and the OSPAR Commission for
4.1. Regional environmental assessments and management plans
the Protection of the Marine Environment of the North-East Atlantic to
conclude a collective arrangement with the ISA to achieve multi-sec-
Strategic direction 3.2 of the strategic plan supports the develop-
toral protected areas in the North-East Atlantic [42]. While the proposal
ment of a key environmental aim, namely regional environmental as-
was discussed in 2015, the Council did not reach consensus on whether
sessments and management plans for all provinces in which mineral
or not the ISA should join the collective arrangement [43].
activities in the Area are taking place [19]. This provides a clear policy-
Chile lamented that the strategic plan could have specifically com-
level commitment by the ISA to regional-scale environmental man-
mitted the ISA to take into consideration the debates and developments
agement.
around negotiating a new legally binding agreement for the protection
An environmental management strategy could build on this com-
of marine biodiversity in areas beyond national jurisdiction [23], be-
mitment by setting out details regarding the following questions: (a)
yond the ISA’s current engagement with the process. For the ISA to
who will conduct regional environmental assessments and develop
follow any new processes and measures to protect marine biodiversity,
REMPs, (b) what are the procedures for these tasks, and (c) what
including in the waters directly affected by deep seabed mining in the
common criteria will be applied to all regional environmental assess-
Area, will arguably be crucial to achieve multi-sectoral protection of the
ments. This could support meeting the ISA’s obligations to not only
marine environment. It remains to be seen what the ISA will commit to,
evaluate environmental impact assessments (EIAs) from contractors24
once the new agreement is adopted.
but for the LTC itself to ‘prepare assessments of the environmental
implications of activities in the Area’,25 as enshrined in article 165(2)
(d) of the Convention. 4.3. Moving beyond ad hoc measures
An environmental management strategy could also specify the re-
lationship between global policy-level commitments, regional assess- A last point of overlap between the strategic plan and an environ-
ments and plans, and project-level EIAs and management [26]. The mental management strategy is the aim to move beyond ad hoc mea-
latter would need to operate within the parameters of the overall policy sures and create a longer-term strategy for managing the Area. To this
and the regional environmental management plan, while also feeding end, the ISA’s strategic plan commits the ISA inter alia to the devel-
information upwards. Similarly, as the Netherlands submitted, REMPs opment of:
should be based on an overarching environmental management plan or
policy of the ISA, which would serve as the basis for REMPs [41]. The (a) ‘regional environmental assessments and management plans for all
aim would be to have a clear link between policy, regional, and project- mineral provinces in the Area where exploration or exploitation is
level environmental management. taking place’ (strategic direction 3.2);
However, a key challenge for achieving appropriate regional man- (b) ‘scientifically and statistically robust monitoring programmes and
agement is the allocation of funds to support the development of re- methodologies to assess the potential risk for activities in the Area
gional environmental assessments and management plans, as noted by to interfere with the ecological balance of the marine environment’
the Secretary-General [24]. (strategic direction 3.4); and
(c) ‘appropriate regulations, procedures, monitoring programmes and
4.2. Inter-institutional collaboration methodologies to prevent, reduce and control pollution and other
hazards to the marine environment, as well as interference with the
A point of overlap between the strategic plan and a potential en- ecological balance of the marine environment, prevent damage to
vironmental management strategy is the collaboration between the ISA the flora and fauna of the marine environment and implement the
and other relevant organisations. Protecting marine ecosystems in areas relevant requirements relating to the protection of the marine en-
beyond national jurisdiction requires effective management of all vironment’ (strategic direction 3.5).
human activities that impact these ecosystems. While the jurisdiction of
the ISA is limited to seabed mining, the LOSC provides for the co- These commitments provide an important indication as to what
operation between the ISA and other organisations to achieve a degree environmental management measures the ISA seeks to pursue. Whether
these commitments will translate into regulatory certainty will depend
on how they will be reflected in the action plan that is currently being
24
1994 Implementing Agreement, annex section 1(7). developed.
25
See also LOSC, article 165(2)(f) which highlights the need to take into
account 'assessments of the environmental implications of activities in the Area'
26
when drafting rules, regulations, and procedures for the Council. LOSC, article 169. See also article 197.

4
A. Jaeckel Marine Policy 114 (2020) 103423

An environmental management strategy could add details to these the time-bound implementation of environmental tasks to be performed
high-level commitments, including defining ‘ecological balance’ and centrally by the ISA, such as regional environmental assessments. It
‘damage to the flora and fauna of the marine environment’. Moreover, it would help to integrate these tasks into the ISA’s decision-making
could specify who is responsible for developing which aspect of the procedures and safeguard them against being overlooked if commercial
monitoring programme etc, when will these be developed, and how will pressure to promptly commence the exploitation phase increases.
they be given effect. This leads to the following section discussing the An example of a relevant measure is the current aim for the ISA to
gaps left by the ISA’s strategic plan. conduct cumulative impact assessments at a regional level.28 An en-
vironmental management strategy could end uncertainty as to when
5. Gaps left by the strategic plan and how these will be performed.
A further example is the requirement on the LTC to develop and
While there are overlaps in high-level commitments between the implement procedures for determining whether proposed exploration
strategic plan and a potential environmental management plan, the activities in the Area would have serious harmful effects on vulnerable
former lacks detail regarding the operationalisation of its high-level marine ecosystems, such as hydrothermal vents, seamounts, and cold-
commitments. In addition, there remain several elements that are not water corals.29 If that is the case, the LTC must ensure ‘those activities
captured in the ISA’s current strategic plan and that could be detailed in are managed to prevent such effects or not authorized to proceed.‘30
an environmental management strategy and reflected in the ISA’s reg- The reason for this requirement is the LTC’s conclusion that ‘[t]here is
ulations as appropriate. some potential for serious and permanent harm in [the areas of poly-
metallic sulphide and cobalt-rich ferromanganese crusts] during the
process of seabed mining’.31 The LTC went on to say that because sul-
5.1. Environmental goals and objectives
phides deposits are localized, ‘the potential impact at a mine site is likely
to be significant’.31 Despite the significance of this requirement and the
The first lacuna is overarching environmental goals, objectives, and
fact that it was first established in 2010, no procedures have been de-
measurable targets as well as mechanisms to assess progress towards
veloped and exploration work has continued as normal. An environ-
the targets using indicators. The need for those is widely acknowledged
mental management strategy could turn this and other tasks into time-
[7,14,44,45] and the ISA Council has specifically ‘reaffirmed the im-
bound deliverables to prevent them from being overlooked.
portance of advancing environmental objectives’ [26].
All contractors will likely establish environmental objectives as part
of their project-level Environmental Management and Monitoring Plan 5.3. Priorities
[17,46]. However, overarching environmental goals and objectives
applicable to the whole Area will be necessary to manage the en- Closely linked to the previous point is the need for priorities. Some
vironmental impacts of seabed mining across spatial scales, including environmental protection tools require other milestones to be met first.
on ecosystem integrity. Tunnicliffe et al provide examples of potential For example, robust environmental baselines are a prerequisite for EIAs
environmental goals for the Area [45]. and monitoring programmes [36,44]. Without knowing the environ-
Goals and objectives will also be crucial to achieve a precautionary mental conditions pre-mining, it is impossible to monitor and evaluate
approach, which necessitates environmental measures that are both environmental changes caused by mining activities, making a precau-
effective in meeting the environmental goals and objectives but also tionary approach all the more important. Equally, ‘the availability of
proportionate to them, meaning no more restrictive than necessary [10]. data [is] the driver of the development of regional environmental
Without overarching goals and objectives, it is not possible to de- management plans,’ as the ISA Council specifically noted [4].
termine whether a measure is in line with the precautionary approach Designing a strategic approach to environmental regulation and
or indeed whether the environmental performance of individual con- management, based on the precautionary approach, includes specifying
tractors is satisfactory. Moreover, strategic environmental goals and these prerequisites and priorities. As South Africa noted in its submis-
objectives offer an opportunity to integrate ecosystem services, such as sion on the ISA’s draft strategic plan: ‘The draft plan seems to be fo-
carbon sequestration and nutrient cycling, into environmental man- cused on developing environmental regulations in a ‘progressive way’,
agement for deep seabed mining [47]. but it does not provide for the actual prioritisation of identified en-
Opinions differ as to whether environmental goals and objectives vironmental considerations' [32].
are best enshrined in the ISA’s regulations or standards or annexed to an An environmental management strategy could set out these prio-
environmental management strategy. While regulations are binding, rities and ‘timelines’. Indeed, where applicable, it could specify
amending them is cumbersome and whether or not amendments will minimum data requirements needed to proceed to the next step [7,14].
apply equally to all contractors will depend on the wording in the final This could help to ensure that baselines are of sufficient quality and it
exploitation regulations.27 In any event, an environmental management would provide contractors with certainty as to the quality and quantity
strategy would need to set out how, by whom, and when the goals and of data they need to collect and process in order to meet their obliga-
objectives will be developed as well as details regarding their periodic tions. This would also support the procedural integration of the ob-
review and update. ligation to apply a precautionary approach, by establishing procedural
safeguards whereby applicants and contractors can only proceed to the
next step once sufficient baselines are established [10]. As a scientific
5.2. Systematic approach to environmental management

Regulatory certainty would be increased by developing a systematic 28

Recommendations for the guidance of contractors for the assessment of the
approach to environmental regulation and management. This includes possible environmental impacts arising from exploration for marine minerals in the
Area (n 11), paragraph 16; Environmental Management Plan for the Clarion-
Clipperton Zone (n 8), paragraphs 37, 40, 51.
27 29
The Draft Regulations on Exploitation of Mineral Resources in the Area Nodules Exploration Regulations, regulation 31(4); Sulphides and Crusts
issued on 9 July 2018 in document ISBA/24/LTC/WP.1/Rev.1 foresee Exploration Regulations, regulation 33(4).
30
amendments to the regulations being applicable to all contractors. See draft Nodules Exploration Regulations, regulation 31(4); Sulphides and Crusts
regulation 3.3 which states: ‘The Contractor shall, in addition: (a) Comply with Exploration Regulations, regulation 33(4).
31
the Regulations, as well as other Rules of the Authority, as amended from time to ISA, Explanatory notes relating to the draft regulations on prospecting and ex-
time, and the decisions of the relevant organs of the Authority’ (emphasis ploration for polymetallic sulphides and cobalt-rich ferromanganese crusts (ISBA/
added). 10/C/WP.1), ISBA/11/C/5 (12 August 2005), paragraph 15 (emphasis added).

5
A. Jaeckel Marine Policy 114 (2020) 103423

report commissioned by PEW Charitable Trusts notes: management tasks to specific actors.
There are various options for the format of an environmental
‘The operationalisation of “serious harm” and “significant adverse
management strategy, including a stand-alone document or an annex to
impact” requires quantitative measurements of a series of variables,
the overarching strategic plan, sitting alongside other possible strate-
which need to be defined as targets and thresholds for ecological
gies relating to the ISA’s strategic directions.
indicators addressing specific environmental goals and objectives.
The effective protection of the marine environment is a core ob-
The environmental baseline, including the data that create it, is a
ligation of, and indeed a priority task for, the ISA under the LOSC, as
critical underpinning of the effective development of all strategic,
well as the 1994 Implementing Agreement.32 An environmental man-
regional and local environmental objectives, targets, thresholds and
agement strategy would support the ISA in giving effect to its mandate
indicators to measure serious harm. This means that the baseline
by establishing systematic environmental safeguards during both the
data must be sufficient to enable implementation of the Authority’s
exploration and exploitation phases in the entire Area. Importantly,
[strategic environmental objectives and goals]’ [44].
several elements that could form part of an environmental management
strategy have either been adopted by the ISA (e.g. REMP for the
5.4. Substantive obligations Clarion-Clipperton Zone) or acknowledged as important (e.g. environ-
mental objectives). Rather than reinventing the wheel, an environ-
An environmental management strategy could also address current mental management strategy could integrate all relevant measures into
gaps in substantive obligations. These include incorporating climate a strategic vision, fill current gaps, and clearly situate all measures
change-related variations into all environmental assessments [25,27] within the decision-making procedures of the ISA.
and making the ecosystem approach as well as the polluter-pays prin-
ciple applicable in the seabed mining context, the latter having been Conflicts of interest
suggested by several states [31,41]. While these could be included in a
policy-level environmental management strategy, the relevant re- No conflicts of interest.
quirements on contractors would also need to be reflected in the mining
regulations and the standard contract terms. More specifically, the Acknowledgement
regulations and standard contract terms could require an operator to
follow an ecosystem approach, while the environmental management This paper was supported by funding from Macquarie University
strategy could outline how the ISA aims to operationalise that approach (Project ID 9201501192).
on a global and regional level.
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