The first part of this report summarizes the activities of the International Seabed Authority (ISA) over the period July 2015 to July 2016 and details contracts for the exploration of mineral resources in the deep seabed applied for, assessed, or concluded in 2016. The second part notes the activities during 2016, if any, of other international bodies with a legal remit concerning the deep seabed and ocean floor and other relevant legal developments. (1) ISA (A) General Remarks The ISA was established under the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1994 Agreement Relating to the Implementation of Part XI of UNCLOS (1994 Agreement). It is the organization through which state parties to UNCLOS organize and control activities for the exploration and mining of minerals in ‘the Area’ (that is, the seabed, ocean floor, and subsoil thereof beyond the limits of national jurisdiction) while ensuring that the marine environment is not subject to harm during these activities. The ISA meets annually at its headquarters in Kingston, Jamaica, and the twenty-second session of the authority was held on 11–22 July. (B) Report of the Secretary-General In his annual report (ISBA/22/A/2) on the activities of the ISA (as required by Article 166(4) of UNCLOS), the secretary-general, Nii Allotey Odunton, urged all coastal states to deposit charts or lists of geographic coordinates showing the outer limit lines of their continental shelves with the secretary-general of the ISA as soon as possible. Despite being a requirement under Article 84(2) of UNCLOS, only six members of the authority had complied with this obligation at the time of the report’s writing: Australia, France (with respect to Martinique, Guadeloupe, French Guiana, New Caledonia, and the Kerguelen Islands), Ireland, Mexico, Niue, and the Philippines. Similarly, the secretary-general reiterated his call in the 2015 report for all UNCLOS members not yet party to the 1994 Agreement to become parties at the earliest possible opportunity. He also strongly encouraged the remaining fourteen states that have signed the protocol but have yet to ratify it to take the necessary steps to become parties to the protocol at their earliest convenience. The secretary-general reported, among other things, on the present state of contracts for exploration in the Area, the work of the Legal and Technical Commission (LTC) in developing a regulatory framework for mining (see below), and collaboration between the ISA and other international bodies that have overlapping remit for the deep seabed and ocean floor. In terms of collaboration, the ISA conducted negotiations during 2016 with the International Cable Protection Committee (which continues to attend and participate in annual sessions of the ISA); the International Hydrographic Organization (with whom it signed a draft agreement of cooperation to improve common knowledge and facilitate the mapping of the sea floor in the Area); the Oslo–Paris Commission’s Commission for the Protection of the Marine Environment of the North-East Atlantic and the North East Atlantic Fisheries Commission (who together invited the ISA to participate in their second meeting under the collective arrangement in March 2016); the International Maritime Organization (who, since the twenty-first session, has signed an Agreement of Co-operation with the ISA stating that they will consult one another on matters of common interest, with a view to ensuring maximum coordination of their respective work and activities); and the Pacific Community (which has replaced the Pacific Islands Applied Geoscience Commission; there is now a memorandum of understanding that exists between it and the ISA). (C) Present Status of Contracts in the Area Contracts for exploration and exploitation of minerals in the Area are mineral resource specific and time-limited. Specifically, contracts may cover three different types of mineral resources: polymetallic nodules, polymetallic sulphides, and cobalt-rich ferromanganese crusts. To date, the only contracts granted have been for exploration as opposed to exploitation (mining), and the majority of these contracts cover exploration for polymetallic nodules in the Clarion-Clipperton Fracture Zone of the Pacific Ocean, although contracts have also been granted in relation to the Atlantic and Indian Oceans. Each contract for exploration has a fixed duration of fifteen years. Down from the five new contracts for exploration signed in 2015, only two new contracts were signed in the period between the twenty-first and twenty-second sessions. A contract for exploration of cobalt-rich ferromanganese crusts in the Rio Grande Rise in the South Atlantic Ocean with the Companhia de Pesquisa de Recursos Minerais was signed in Brasilia on 9 November 2015, and a contract for exploration of polymetallic nodules in the Clarion-Clipperton Fracture Zone was signed in New York with UK Seabed Resources Limited on 29 March 2016. However, contracts for exploration have since been signed with the Cook Islands Investment Corporation on 15 July 2016 with respect to polymetallic nodules in the Clarion-Clipperton Fracture Zone (reserved area) and with the government of India on 26 September 2016 with respect to polymetallic sulphides in the Indian Ocean Ridge. To provide an overview of contracting to date, the ISA had entered into a total of twenty-six exploration contracts by the end of 2016. Sixteen of these contracts are for the exploration for polymetallic nodules in the Clarion-Clipperton Fracture Zone (fifteen) and in the Central Indian Ocean Basin (one). There are six contracts for exploration for polymetallic sulphides in the South West Indian Ridge, Central Indian Ridge, and the Mid-Atlantic Ridge, and four contracts for exploration for cobalt-rich crusts in the Western Pacific Ocean. Although the Security-General expressed anticipation that the Council-approved contract application from China Minmetals Corporation for polymetallic nodules in the Clarion-Clipperton Fracture Zone would be signed during 2016, the contract is still pending (ISBA/21/C/17 on 20 July 2015). The Council has also approved an application for a plan of work for exploration for cobalt-rich ferromanganese crusts from the government of Korea (ISBA/22/C/20); however, this contract remains to be completed. Following the LTC’s recommendation, the Council also approved extensions of contracts for the exploration of polymetallic nodules made by the Interoceanmetal Joint Organization (ISBA/22/C/21), Yuzhmorgeologiya (ISBA/22/C/22), the government of Korea (ISBA/22/C/23), the China Ocean Mineral Resources Research and Development Association (ISBA/22/C/24), Deep Ocean Resources Development (ISBA/22/C/25), and the Institut français de recherché pour l’exploitation de la mer (ISBA/22/C/26). This followed the issuing of procedures and criteria for extending exploration contracts as well as a template for extension agreements, released by the LTC in 2015 (reported in the previous edition of this Yearbook). In relation to the effectiveness of environmental monitoring for existing contracts, the LTC reported in 2013 that there were still: concerns over the quality of a number of the annual reports and, in particular, the fact that some contractors had failed to observe the recommendations for guidance issued by the Commission for the assessment of environmental impacts and to provide adequate data in the appropriate format. (ISBA/19/LTC/8) During the nineteenth session that year, the LTC issued two sets of recommendations to supplement the regulations of the Mining Code: one offering guidance to contractors and sponsoring states in relation to training programs under plans of work for exploration (ISBA/19/LTC/14) and the other to contractors for the assessment of the possible environmental impacts arising from exploration for marine minerals in the Area (ISBA/19/LTC/8). Further, during the twenty-second session in 2015, the LTC issued two additional sets of recommendations dealing with the reporting of actual and direct exploration expenditures (ISBA/21/LTC/11) and the content, format, and structure of annual reports (ISBA/21/LTC/15), respectively. In an attempt to further improve the accurate assessment of the environmental impact of activities in the Area, the ISA has conducted a series of workshops since 2013 for the standardization of the procedures and methodologies for taxonomic classification of the fauna in the Area. The need for this arose when it became clear in 2012 that the taxonomy used to name the fauna was not standard, making the data contained in the database of the ISA impossible to compare and combine and, consequently, the likely effects of activities on the marine environment difficult to assess (ISBA/21/A/2, para. 65). Several recommendations came out of those workshops, including: enforcing the collection of molecular data (reverse taxonomy, barcoding) in the Area to provide connectivity across the Area, in particular, the Clarion Clipperton Fracture Zone; ensuring the highest resolution in taxonomy—that is, species level—and ensuring that taxonomic nomenclature follows the World Register of Marine Species standards; increasing efforts towards capacity building by producing online atlases and catalogues to illustrate the dominant morphotypes found in the Area; and developing new protocols and regulations for the collection and processing of environmental DNA to integrate environmental DNA (eDNA) into the sampling regimes of all of the contractors. In May, in collaboration with the Swiss Network for International Studies and other scientific institutions, the Secretariat started the first research program for assessing deep-sea environmental impacts based on next generation sequencing (NGS)—the meta-barcoding approach for environmental monitoring of marine ecosystems (ISBA/22/A/2). The Secretariat is also currently building two new atlases to chart the macro-fauna and meio-fauna of the Clarion-Clipperton Fracture Zone. Other recommendations are still to be implemented. (2) Work of the LTC The LTC of the ISA held two sessions—from 22 February to 4 March and on 4–13 July—and is set to have its first session of 2017 from 20 February to 3 March. Detailing the work of the Commission during this time, the chair of the LTC released a report (ISBA/22/C/17 on 13 July 2016) that concluded with an update of the ‘priority deliverables’ listed in the 2015 report (ISBA/21/C/16, annex III) as well as a list of ‘high-level issues’ and an ‘action plan’ in relation to additional work. The first-ranked priority concerns the development of exploitation regulations and standard contract terms for miners. By way of background information, the LTC has specific responsibility for formulating the rules, regulations, and procedures contained in the Mining Code that regulate prospecting, exploration, and exploitation of marine minerals in the Area. The present Code contains three sets of regulations covering prospecting and exploration for polymetallic nodules (Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (ISBA/6/A/18 and ISBA/19/C/17)), polymetallic sulphides (Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area (ISBA/16/A/12/Rev.1)), and cobalt-rich ferromanganese crusts (Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area (ISBA/18/A/12)). Although there are not yet any regulations covering the exploitation of mineral resources (mining), the LTC began to develop these in 2014 and, in February 2016, began to review the suggested draft framework following stakeholder consultation. In regard to developing the environmental assessment and management regime, ‘priority deliverables’ for the LTC include: refining criteria and measures for a ‘precautionary approach’; developing a strategic environmental plan for the Clarion-Clipperton Fracture Zone; establishing a regional environmental assessment process and regional environmental management plans; formulating options for environmental impact assessment scoping, review, and the decision-making process, including public participation options; and finalizing an environmental impact statement template/draft statement guidelines. The LTC is also considering whether an ‘adaptive management regime’ is suitable for deep-seabed mining; the definitions and thresholds for ‘serious harm’ and ‘substantial evidence’ that will be key terms in the exploration and future exploitation codes; payment mechanisms; approaches to responsibility and liability (including the possible development of an environmental liability trust fund); data management; and the options for, and possible structure of, a mining directorate, inspectorate, or environmental regulator. Further, the action plan identifies future ‘task areas’ addressing questions around responsibility and liability, which include contract violations and penalties; the settlement of disputes; the suspension, termination, and revision of contracts; and environmental bonds and performance guarantees. An additional priority for the LTC (and one upon which relatively little progress has been made to date) includes the development of an action plan addressing the ‘general and systematic review of the manner in which the international regime of the Area has operated in practice’ as required by Article 154 of the UNCLOS (ISA.154.R.3). (3) Other International Developments Including Developments within Bodies with a Legal Remit Concerning the Deep Seabed and Ocean Floor. (A) New Parties to UNCLOS and the 1994 Agreement Azerbaijan became a party to UNCLOS and the 1994 Agreement on 16 June. Antigua and Barbuda became a party to the 1994 Agreement on 3 May, while Ghana became a party on 23 September. There are now 168 parties to UNCLOS and 150 parties to the 1994 Agreement. (B) International Tribunal for the Law of the Sea (ITLOS) ITLOS celebrated its twentieth anniversary in 2016. There are currently two cases that are ongoing before the tribunal, namely Case no. 25 (Panama v Italy), concerning alleged smuggling and fraud, and Case no. 23 (Ghana/Côte d’Ivoire) concerning the delimitation of the maritime boundary between Ghana and Côte d’Ivoire. In a decision concerning provisional measures in Case no. 23, the Special Chamber ordered that ‘the Parties shall take all necessary steps to prevent serious harm to the marine environment, including the continental shelf and its superjacent waters, in the disputed area and shall cooperate to that end’ (ITLOS Reports 2015, 146 <http://www.itlos.org>). The case is due for determination in 2017 and will be reported in a subsequent volume of this Yearbook. (C) Conservation and Sustainable Use of Marine Biological Diversity beyond National Jurisdictions The Ad Hoc Open-ended Informal Working Group to Study Issues Relating to the Conservation and Sustainable Use of Marine Biological Biodiversity beyond Areas of National Jurisdiction (established by UNGA Resolution 59/24) had its last meeting on 20–3 January 2015. In that meeting, the working group finalized its recommendations to the United Nations General Assembly (UNGA), made in accordance with its mandate established by UNGA Resolution 66/231 concerning the potential scope, parameters, and feasibility of an international instrument addressing the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction. The working group decided that an international, legally binding instrument should be developed under UNCLOS and, to that end, recommended that a preparatory committee be convened to make substantive recommendations on the elements of a draft text prior to the holding of an intergovernmental conference (UNGA A/69/780, 13 February 2015, 2(e)). In particular, the working group proposed that the draft text should address: the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, in particular, together and as a whole, marine genetic resources, including questions on the sharing of benefits, measures such as area-based management tools, including marine protected areas, environmental impact assessments and capacity-building and the transfer of marine technology. On 19 June 2015, the UNGA adopted all of the recommendations of the working group and agreed to launch a new set of negotiations under UNCLOS (UNGA A/RES/69/292, 19 June 2015). The first session of the consequently established Preparatory Committee was held from 28 March to 8 April, the second from 26 August to 9 September, and the third is scheduled for 27 March to 7 April 2017. The committee is also due to report back to the UNGA on its progress at the end of 2017. The chair of the committee’s Overview of the First Session identified the main issues raised as being: the scope and objective of an international, legally binding instrument and its relationship with other instruments; guiding approaches and principles of an international, legally binding instrument; marine genetic resources, including questions on the sharing of benefits; measures such as area-based management tools, including marine protected areas; environmental impact assessments; and capacity building and the transfer of marine technology (accessed at < http://www.un.org/depts/los/biodiversity/prepcom_files/PrepCom_1_Chair's_Overview.pdf>). Similarly, the chair’s Overview of the Second Session (<http://www.un.org/depts/los/biodiversity/prepcom_files/Prep_Com_II_Chair_overview_to_MS.pdf>) identified the main issues as: marine genetic resources, including questions on the sharing of benefits; measures such as area-based management tools, including marine protected areas; environmental impact assessments; capacity building and the transfer of marine technology; and cross-cutting issues. The number of attendees was also significantly higher at the second session than at the first, with representatives from 115 member states of the United Nations (UN); three non-member states; six UN funds, programs, bodies, and offices; seventeen intergovernmental organizations; and twenty-three non-governmental organizations attending (compared to ninety-eight UN member states; two non-member states; twelve intergovernmental organizations; five UN funds, programs, bodies, and offices; and seventeen non-governmental organizations who attended the first meeting). (D) Conservation of the Sargasso Sea The government of the Bahamas and the government of Canada became the seventh and eighth official signatories to the Hamilton Declaration on Collaboration for the Conservation of the Sargasso Sea (Hamilton Declaration) on 27 September 2016 and 3 December 2016 respectively. The Hamilton Declaration is a non-binding, political statement concerned with conserving the environment of the Sargasso Sea that was established on 11 March 2014. The Sargasso Sea comprises the portion of the high seas and the Area in the North Atlantic surrounding Bermuda. It is the world’s only holopelagic seaweed ecosystem and is home to a wide variety of endangered species. Among other things, the Hamilton Declaration created the Sargasso Sea Commission to exercise a stewardship role for the sea, which is comprised of scientific and other experts concerned with the conservation of the oceans who make submissions to international organizations such as the ISA (based upon ‘the best available science, and apply a ecosystem approach and the precautionary principle where appropriate’ (Clause 8 of the Hamilton Declaration)) and provide support to those organizations where appropriate. The Sargasso Sea was also one of five sites identified as being of potential outstanding universal value in a new report entitled World Heritage in the High Seas: An Idea Whose Time Has Come, calling for the extension of the regime of the UN Educational, Scientific and Cultural Organization’s Convention for the Protection of the World Cultural and Natural Heritage to areas beyond national jurisdiction (<http://whc.unesco.org/document/143493>). © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: firstname.lastname@example.org
Yearbook of International Environmental Law – Oxford University Press
Published: Dec 28, 2017
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