Environmental Impact Assessment process for deep-sea mining in ‘the Area’

Environmental Impact Assessment (EIA) is key to the robust environmental management of industrial projects; it is used to anticipate, assess and reduce environmental and social risks of a project. It is instrumental in project planning and execution, and often required for financing and regulatory approval to be granted. The International Seabed Authority currently requires an EIA for deep-sea mining (DSM) in areas beyond national jurisdiction (the Area), but the existing regulations present only a portion of a robust EIA process. This article presents an ideal EIA process for DSM, drawing upon the application of EIA from allied industries. It contains screening, scoping and assessment phases, along with the development of an environmental management plan. It also includes external review by experts, stakeholder consultation, and regulatory review. Lessons learned from application of EIA elsewhere are discussed in relation to DSM, including the integration of EIA into UK domestic law, and the reception of EIAs prepared for seabed ore extraction in the Exclusive Economic Zones of New Zealand and Papua New Guinea. Finally, four main challenges of implementing the EIA process to DSM in the Area are presented: 1) EIA process for DSM needs to incorporate mechanisms to address uncertainty; 2) detailed requirements for the EIA process phases should be made clear; 3) mechanisms are needed to ensure that the EIA influences decision making; and, 4) the EIA process requires substantial input and involvement from the regulator

The use of influential power in ocean governance

Ensuring inclusivity, especially the meaningful participation of diverse actors, is a key component of good governance. However, existing ocean governance frameworks have not yet achieved an equitable and fair playing field and are indeed often characterized by inequitable practices. In this perspective piece, we argue that one of the reasons for this lack of inclusion are the existing power frameworks and ways in which power is exercised within fora nominally intended to foster inclusion and cooperation. By focusing on four case studies of basic ocean governance processes, we explore how influential and interactive power is exercised in intergovernmental meetings, international conferences, and regional negotiations. These case studies demonstrate how specific exercises of power that undermine procedural inclusivity influence decision-making and the setting of agendas, and exclude important voices from ocean governance fora. This perspective piece contributes to the existing literature on power by highlighting how power is exercised within fundamental aspects of ocean governance. This paper merely scratches the surface, and more actions and research are needed to uncover and, more importantly, reverse deeply-rooted and self-perpetuating power structures in ocean governance

Deep-Sea Mining With No Net Loss of Biodiversity—An Impossible Aim

Deep-sea mining is likely to result in biodiversity loss, and the significance of this to ecosystem function is not known. “Out of kind” biodiversity offsets substituting one ecosystem type (e.g., coral reefs) for another (e.g., abyssal nodule fields) have been proposed to compensate for such loss. Here we consider a goal of no net loss (NNL) of biodiversity and explore the challenges of applying this aim to deep seabed mining, based on the associated mitigation hierarchy (avoid, minimize, remediate). We conclude that the industry cannot at present deliver an outcome of NNL. This results from the vulnerable nature of deep-sea environments to mining impacts, currently limited technological capacity to minimize harm, significant gaps in ecological knowledge, and uncertainties of recovery potential of deep-sea ecosystems. Avoidance and minimization of impacts are therefore the only presently viable means of reducing biodiversity losses from seabed mining. Because of these constraints, when and if deep-sea mining proceeds, it must be approached in a precautionary and step-wise manner to integrate new and developing knowledge. Each step should be subject to explicit environmental management goals, monitoring protocols, and binding standards to avoid serious environmental harm and minimize loss of biodiversity. “Out of kind” measures, an option for compensation currently proposed, cannot replicate biodiversity and ecosystem services lost through mining of the deep seabed and thus cannot be considered true offsets. The ecosystem functions provided by deep-sea biodiversity contribute to a wide range of provisioning services (e.g., the exploitation of fish, energy, pharmaceuticals, and cosmetics), play an essential role in regulatory services (e.g., carbon sequestration) and are important culturally. The level of “acceptable” biodiversity loss in the deep sea requires public, transparent, and well-informed consideration, as well as wide agreement. If accepted, further agreement on how to assess residual losses remaining after the robust implementation of the mitigation hierarchy is also imperative. To ameliorate some of the inter-generational inequity caused by mining-associated biodiversity losses, and only after all NNL measures have been used to the fullest extent, potential compensatory actions would need to be focused on measures to improve the knowledge and protection of the deep sea and to demonstrate benefits that will endure for future generations

Deep seabed mining and adaptive management : the procedural challenges for the International Seabed Authority

The International Seabed Authority (ISA) is currently developing the regulatory framework for commercial-scale mining of minerals on the deep seabed. In this context, the ISA has to balance seabed mining with its mandate to protect and preserve the marine environment from harmful effect caused by mining operations. One potential tool to help strike this balance is adaptive management, which the ISA seeks to incorporate into its future regulatory framework. This article discusses some of the challenges to achieving adaptive management and demonstrates that the current regulatory options make it difficult, if not impossible, to achieve adaptive management.Adaptive management will require procedural mechanisms through which the ISA can adjust environmental standards continuously. This article examines whether the current regulatory framework for mineral exploration provides for such flexibility. Specifically, it discusses four potential ways, including their benefits and shortcomings, in which environmental standards may be adjusted during exploration work. The discussion highlights the current lack of comprehensive mechanisms to adjust environmental standards as one of the barriers to achieving adaptive management. This provides crucial information for the design of the future regulatory framework.7 page(s

The International Seabed Authority and marine environment protection : implementing a precautionary approach

My doctoral research examines the role of the International Seabed Authority (ISA) in protecting the marine environment, with a particular focus on the implementation of the precautionary principle. This research sits at the interface of international environmental law, the law of the sea, and international institutional law. It arises out of a practical need to establish adequate environmental protection measures before seabed mineral mining commences on a commercial scale in the very near future. Established under Part XI of the 1982 Convention on the Law of the Sea as an independent organisation, the ISA administers the international seabed 'Area', that is 'the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction', on behalf of humankind. This Area, our common heritage of humankind, contains valuable mineral resources, such as gold, copper, and manganese, necessary for technological advancements. At the same time, the seabed is a unique habitat for life in the deep oceans. Magnificent and diverse ecosystems exist on e.g. seamounts and hydrothermal vents. Some of these life forms, owing to their extraordinary capabilities to live in inhospitable conditions away from the photosynthetic circle of life, are thought to hold clues about the origin of life on Earth. These precious ecosystems are significantly threatened by plans to mine the deep seabed for minerals. Whilst the legal framework was established in the 1980s, technological and economic factors have postponed seabed mining and left the ISA marginalised. However, recent changes in these same factors have triggered a rapid increase in applications for mineral exploration licenses. In the words of the ISA Secretary-General: 'Over the past two years, the level of interest in deep seabed mining has increased rapidly and significantly after decades of being 'on hold'.' Moreover, the first exploitation operations are scheduled to start in 2016, adding a sense of urgency to the matter. Against this background, one of the core challenges in regulating this new activity is to balance mineral exploitation with environmental protection. Having foreseen the need to further develop environmental rules and standards, the drafters of the Convention equipped the ISA with the competence to adopt legally binding regulations on seabed mining standards and procedures. However, the high level of uncertainty as to the precise environmental consequences of deep sea mining activities warrants the application of the precautionary principle. In fact, the UN General Assembly has called for inter alia the ISA to better integrate precautionary biodiversity protection into its work and the Seabed Disputes Chamber, in its 2011 landmark Advisory Opinion, has provided new momentum for proactive implementation of precaution in the seabed regime. The question then is, how can precaution be translated from an abstract concept into practice and how is the ISA attempting or achieving this? In order to answer this question, my research has identified a set of steps to implement precaution, which traverse three dimensions: institutional, procedural, and substantial. Building on this theoretical framework, my research analyses (a) how the ISA has included precautionary considerations into its decision-making process and institutional design and (b) which substantial, protective actions have resulted from this. The aim of my thesis is twofold: to provide a case-study on the implementation of precaution and to shed some light on 'one of the least understood (...) international regimes'. To this end, I have conducted research both at the ISA itself during its annual session in 2013 and at the International Tribunal for the Law of the Sea in Hamburg.2 page(s

Current legal developments : International Seabed Authority

14 page(s

Intellectual property rights and the conservation of plant biodiversity as a common concern of humankind

This article makes the case for the obligation to conserve plant biodiversity to be classified as a common concern of humankind, to justify and indeed prescribe limitations on private intellectual property rights over plants and related processes. Within the biodiversity regime, the notion of 'common concern of humankind' subjects the permanent sovereignty of states over natural resources to the interests of humanity. It shifts the obligations of states from managing their own plant biodiversity towards conserving it on behalf of humankind. In contrast, TRIPS requires states to protect private intellectual property rights with little discretion to adequately balance them with public interests. This creates a dichotomy. This article argues that rather than mobilizing state sovereignty as rhetoric to distract from addressing common concerns of humankind, it should be constructed as a concept capable of facilitating these very concerns.23 page(s

The Implementation of the precautionary approach by the International Seabed Authority

Paper prepared for the International Seabed Authority to support the development of an Exploitation Code to regulate exploitation of mineral resources in the Area. This paper discusses a range of measures that would contribute to the implementation of the precautionary approach by the International Seabed Authority (ISA). The precautionary approach is a key tool to address the environmental protection challenges posed by deep seabed mining, both at a regulatory and at a management level. At its core, the precautionary approach requires adequate environmental protection through the taking of early action in response to risks of environmental harm, even in the context of scientific uncertainty