The International Seabed Authority and the Precautionary Principle

International Law

The International Seabed Authority and the Precautionary Principle

By Aline L. Jaeckel
Brill Nijhoff February 2017

Specifications

ISBN-13
9789004332270
Publisher
Brill Nijhoff
Publication
February 2017
Format
Hardback
Jurisdiction
Netherlands ? Countri(es) for reference only

Details

With the transition to the commercial-scale exploitation of deep seabed minerals, the International Seabed Authority’s obligation to protect the marine environment is being tested.

In The International Seabed Authority and the Precautionary Principle Aline L. Jaeckel provides the first in-depth analysis of the Authority’s work in regulating and managing deep seabed minerals.

This book examines whether and to what extent the Authority is implementing the precautionary principle in practice. This includes the development of adequate environmental protection standards as well as procedural safeguards and decision-making processes that facilitate risk assessment and risk management. In doing so, the author offers an insightful example of how the precautionary principle can be translated into a practical management tool.

Table of Contents

Acknowledgements
List of Abbreviations
List of Figures
List of Cases
List of Treaties and Declarations
PART I: CONTEXT – DEEP SEABED MINING, THE MARINE ENVIRONMENT, AND PRECAUTION
Chapter 1: Deep Seabed Mining and the Marine Environment
1.1 Setting the Scene: The Onset of Deep Seabed Mining
1.2 Exploring the Problem
1.2.1 The Marine Environment of the Deep Seabed and its Mineral Resources
1.2.2 The Environmental Risks and Uncertainties of Deep Seabed Mineral Mining
1.2.3 The Need for a Precautionary Approach to Seabed Mining
1.3 Objectives of the Study
1.4 Terminology
1.5 Methodology and Limits of the Study
1.6 Structure of the Study
Chapter 2: The Precautionary Principle in International Law
2.1 Introduction
2.2 The Precautionary Principle in International Law
2.2.1 From Reactive to Proactive Thinking: the Rationale of Precaution
2.2.2 History of the Precautionary Principle
2.2.3 Status of the Precautionary Principle in International Law
2.2.4 Overlapping Principles: Precaution and Prevention
2.3 Defining the Precautionary Principle: Three Elements
2.3.1 Threat of Environmental Harm
2.3.2 Uncertainty
2.3.3 Remedial Action
2.3.3.1 Effectiveness
2.3.3.2 Proportionality
2.3.4 The Role of Thresholds
2.4 Implementing the Precautionary Principle
2.4.1 The Three Dimensions of Implementing Precaution
2.4.1.1 Institutional Dimension
2.4.1.2 Procedural Dimension
2.4.1.3 Protective Measures
2.4.1.4 A Three-dimensional Assessment of the Implementation of Precaution
2.4.2 The Role of Values
2.4.2.1 Making Uncertainties Explicit
2.4.2.2 Participation
2.4.2.3 Transparency
2.4.2.4 A Normative Framework
2.4.3 The Burden of Proof
2.4.3.1 Considerations for a General Allocation of the Burden of Proof
2.4.3.2 Reversing the Burden of Proof as an Implementation Measure
2.4.4 The Nature of Uncertainties
2.4.5 Dealing with Uncertainty in Complex Systems: Adaptive Management
2.4.6 Examining Counter-Effects: the Aim of Net Environmental Protection
2.4.7 Socio-Economic Considerations
2.5 Framework for Analysing the Implementation of the Precaution: Assessment Criteria
PART II: THE INTERNATIONAL SEABED AUTHORITY
Chapter 3: The International Seabed Authority and the Seabed Mining Regime
3.1 Introduction
3.2 Historical Development of the Deep Seabed Mining Regime
3.2.1 The Legal Status of the International Seabed and its Resources
3.2.2 The LOSC and Continuing Uncertainty as to the Legal Status of the Seabed and its Resources
3.2.3 The 1994 Implementing Agreement and the Revision of the Common Heritage Concept
3.3 Mandate of the ISA
3.4 Institutional Organisation of the ISA
3.4.1 The Assembly
3.4.2 The Council
3.4.3 The Secretariat
3.4.4 The Legal and Technical Commission
3.4.5 The Economic Planning Commission
3.4.6 The Finance Committee
3.4.7 The Enterprise
3.5 Decision-making Processes in the ISA
3.5.1 Adopting Mining Regulations
3.5.2 Assessing Applications for Plans of Work
3.6 Enforcement Powers
3.6.1 Monitoring Compliance
3.6.2 Responsibilities and Liability
3.7 Financing the ISA
3.8 Dispute Settlement in the ISA Regime: The Seabed Disputes Chamber
3.9 Conclusion
Chapter 4: The Environmental Mandate of the ISA
4.1 Introduction
4.2 Environmental Considerations During the Negotiations of Part XI and the Implementing Agreement
4.3 The General Obligation Under the Convention and the Implementing Agreement to Protect and Preserve the Marine Environment
4.3.1 The Obligation to Protect and Preserve the Marine Environment
4.3.2 The Environmental Mandate of the ISA
4.3.3 General Environmental Obligations of States
4.4 Gradual Integration of Precaution into the LOSC
4.5 The Debate About Bioprospecting and Marine Scientific Research in the Context of the ISA’s Mandate
4.6 Conclusion
Chapter 5: Developing the ISA’s Environmental Mandate Through the Mining Code
5.1 Introduction
5.2 Law-making Powers of the ISA
5.3 The Mining Code
5.3.1 Exploration Regulations
5.3.2 LTC Recommendations
5.3.3 Future Exploitation Regulations
5.4 The ISA’s Environmental Obligations as Developed by the Mining Code
5.4.1 Assess and Monitor Environmental Impacts
5.4.1.1 Environmental Baselines
5.4.1.2 Environmental Impact Assessments
5.4.1.3 Monitoring Effects on the Marine Environment
5.4.2 Marine Protected Areas
5.4.2.1 Marine Protected Areas in Areas Beyond National Jurisdiction
5.4.2.2 Mandate of the ISA to Declare Marine Protected Areas
5.4.3 Best Environmental Practices
5.4.4 Emergency Orders
5.4.5 Enforcement and Liability
5.4.6 Applying a Precautionary Approach
5.4.6.1 Precautionary Thresholds in the ISA Context
5.5 Conclusion
PART III: IMPLEMENTING PRECAUTION BY THE INTERNATIONAL SEABED AUTHORITY
Chapter 6: Implementing the Precautionary Principle: Protective Measures
6.1 Introduction
6.2 Marine Scientific Research
6.2.1 Research Regarding Faunal Diversity Associated with Polymetallic Nodules
6.2.2 Research Regarding Ecosystems Associated with Polymetallic Sulphides and Ferromanganese Crusts
6.2.3 Discussion About the ISA’s Engagement in Marine Scientific Research
6.3 Marine Protected Areas
6.3.1 The Environmental Management Plan for the Clarion-Clipperton Zone
6.3.2 Environmental Management Plans for Other Areas?
6.3.3 Multi-Purpose Marine Protected Areas
6.3.4 Preservation Reference Zones
6.3.5 Safety Margins
6.4 Measures Pertaining to Particularly Vulnerable Ecosystems
6.5 Listing of Particular Activities
6.6 Emergency Orders
6.7 Environmental Restoration
6.8 Conclusion
Chapter 7: Implementing the Precautionary Principle: Procedural Elements
7.1 Introduction
7.2 Assessing Risks and Uncertainties…
7.2.1 …through Strategic Environmental Assessment
7.2.2 …in the Context of Assessing New Applications for Exploration Contracts
7.2.3 …through Environmental Impact Assessments During Exploration Work
7.2.3.1 The Lack of Environmental Baselines
7.2.3.2 Procedural Consequences of Environmental Impact Assessments
7.2.4 Bringing Environmental Impact Assessments in Line with the Precautionary Approach – Some Suggestions
7.3 Amending Environmental Standards
7.3.1 Amending Regulations
7.3.2 Amending Recommendations
7.3.3 Reviewing a Programme of Activities
7.3.4 Updating Regional Environmental Management Plans
7.3.5 Some Suggestions for Changes to the Procedural Framework
7.4 Ensuring Transparency and Participation
7.4.1 Transparency
7.4.2 Public Participation
7.4.3 Some Suggestions for Ensuring Transparency and Public Participation
7.5 The Burden of Proof
7.5.1 The Status Quo in the ISA’s Legal Framework
7.5.2 The Reversal of the Burden of Proof in Specific Cases
7.6 Monitoring of Environmental Effects
7.6.1 Monitoring Programme for Contractors
7.6.2 Monitoring the Environmental Effects of Protective Measures
7.6.3 Monitoring Environmental Effects on a Regional Scale
7.7 Conclusion
Chapter 8: Implementing the Precautionary Principle: Institutional Aspects
8.1 Introduction
8.2 Institutional Mechanisms for Implementing Precaution
8.2.1 Mechanisms for the Assessment of Environmental Risks and Protective Measures
8.2.2 Mechanisms for Ensuring Compliance
8.3 Current Institutional Limitations
8.3.1 Capacity and Limitations of the Legal and Technical Commission
8.3.2 Capacity and Limitations of the ISA Secretariat
8.4 Options for Institutional Innovation for the ISA
8.4.1 An Environmental Commission
8.4.2 A Mining Inspectorate
8.5 Conclusion
Chapter 9: Conclusion
9.1 The Complexities of Implementing the Precautionary Principle
9.2 The Strengths and Weaknesses of the ISA’s Current Approach to Precaution
9.2.1 Absence of a Conservation Objective
9.2.2 Lack of Obligation to Identify Uncertainties
9.2.3 Strength Derived from Affording Scientific Information a Central Role
9.2.4 Procedural Challenges Associated with Environmental Impact Assessments and Adaptive Management
9.2.5 Lack of Strategic Vision
9.2.6 Successes and Challenges with Respect to Timely Action
9.2.7 Successes and Challenges with Respect to the Role of the ISA in Marine Scientific Research
9.2.8 Conclusion
9.3 Strengthening the Implementation of the Precautionary Principle by the ISA: Suggestions for a Way Forward
BIBLIOGRAPHY
INDEX
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