Marine Mineral Resources in the Area – Current Regulatory Approaches for Comprehensive and Responsible Environmental Monitoring.

Abstract

The International Seabed Authority (ISA) is the organization through which the current 169 States Parties (plus the European Union) to UNCLOS organize and control all mineral-resources-related activities in the Area for the benefit of humankind as a whole. In so doing, article 145 of UNCLOS provides that ISA has also the mandate to ensure the effective protection of the marine environment from harmful effects that may arise from those activities. Therefore, monitoring of the programmes established by contractors to explore and exploit minerals from the Area is in the core of the ISA’s mandate. This abstract gives some content on the current existent regulatory framework (exploration) for responsible environmental monitoring and on what may be necessary to implement in the exploitation regulations. Monitoring the marine environment to protect it from harmful effects that may arise from activities in the Area is a highly demanding task that is part of the contractors’ obligations. As defined in the regulations on exploration for minerals resources in the Area, marine environment “includes the physical, chemical, geological and biological components, conditions and factors which interact and determine the productivity, state, condition and quality of the marine ecosystem, the waters of the seas and oceans and the airspace above those waters, as well as the seabed and ocean floor and subsoil thereof”. Therefore, while the Area refer to the spatial domain of the deep-seabed and subsoil thereof, the activities in the Area depend on the deployment of equipment and machinery from vessels that may impact not only the Area, but also the water column (e.g. pollution), the migratory routes of marine mammals or birds, and even the airspace from vessels CO2 emissions. In accordance with Article 165, paragraph 2(h), of UNCLOS, the Legal and Technical Commission (LTC) “shall make recommendations to the Council regarding the establishment of a monitoring programme to observe, measure, evaluate and analyse, by recognized scientific methods, on a regular basis, the risks or effects of pollution of the marine environment resulting from activities in the Area […]”. While this is yet to be developed, the LTC has been responsible for developing (Regional) Environmental Management Plans ((R)EMPs) that consider mechanisms for monitoring the achievement of the conservation objectives for the areas identified as Areas of Particular Environmental Interest (APEIs) (e.g. ISBA/17/LTC/7). The current regulations for exploration include a Part V, which is related with the protection and preservation of the marine environment. Regulation 31 (in the case of polymetallic nodules) and 33 (in the case of polymetallic sulphides and cobalt-rich ferromanganese crusts) state that “Contractors, sponsoring States and other interested States or entities shall cooperate with the Authority in the establishment and implementation of programmes for monitoring and evaluating the impacts of deep seabed mining on the marine environment […]”. Regulation 32 (in the case of polymetallic nodules) and 34 (in the case of polymetallic sulphides and cobalt-rich ferromanganese crusts) give a specific obligation to contractors to establish environmental baselines against which future effects in the marine environment may be assessed and a programme to monitor and report on such effects. In this context, it is considered that the LTC may issue recommendations to list the exploration activities that may be considered to have no potential for causing harmful effects on the marine environment. In fact, the LTC recommendations for the guidance of contractors for the assessment of the possible environmental impacts arising from exploration (ISBA/LTC/6/Rev.3) do list the type of activities that may have an impact and that require an Environmental Impact Assessment (EIA) and a monitoring programme to be implemented during and after these activities, which need to be approved by the LTC. In its recommendations the LTC also points that the testing of mining components or test-mining may be conducted by contractors collaboratively. Tests need to be monitored intensively to allow the prediction of changes to be expected from the development and use of larger-scale commercial systems. Moreover, when test-mining has already been carried out, even if by another contractor, the knowledge gained through those tests should be made available and applied, where appropriate, to ensure that unanswered questions are resolved by new investigations. The regulatory framework for future exploitation for mineral resources in the Area is still under discussion in the ISA Council. Knowledge gaps are still existent, namely on the impacts of noise and light, as well as of benthic and/or mid-water plumes on the increase of turbidity and potential toxicity in the water column and in areas beyond the mining impacted sites. All these deliverables are being targeted by the LTC and a group of experts nominated to develop the appropriate thresholds that will allow the implementation of a precautionary approach particularly significant in the initial stages of deep-seabed mining. Monitoring will be crucial to assess contractors’ activities, which impacts needs to stay within the previously accepted Environmental Impact Statement (EIS) and below the environmental thresholds that may be defined by the ISA. The current exploitation Draft Regulations require an assessment of applications also based on the technology that will be used to comply with the Environmental Monitoring and Management Plan (EMMP) and the Closure Plan. Thus, technology will play a central role in making sure that monitoring of mining activities may be effective and transparent, ensuring that the principle of Common Heritage of (Hu)mankind is pursued by the ISA.