1 Introduction
Deep-seabed mining is a growing industry concerned with extracting minerals from the ocean floor at depths greater than 200 meters below sea level. Different mining areas, known as mineral provinces, have unique geological and geochemical conditions that lead to the formation of mineral deposits such as polymetallic nodules, polymetallic sulphides, and cobalt-rich ferromanganese crusts. These deposits contain commercially valuable elements like copper, manganese, nickel, cobalt, precious metals, and rare earth elements. However, these mineral resources are non-renewable and mining them can permanently alter deep-sea habitats, raising significant environmental concerns across civil society groups, academia, and policy makers. In the seabed beyond national jurisdiction, referred to as ‘the Area’, these resources are considered the common heritage of humankind and are under the responsibility of the International Seabed Authority (ISA or Authority).1
The ISA is an autonomous international organisation established under the United Nations Convention on the Law of the Sea (UNCLOS).2 It became operational in 1996, after the entry into force of UNCLOS and the 1994 Agreement relating to the Implementation of Part XI of UNCLOS, which amended some provisions related to economic aspects of deep-seabed mining. The primary mandate of the ISA is to organise and control deep-seabed mining activities in the Area for the benefit of humankind as a whole.3 It is tasked with developing
Since its establishment, the ISA has approved 31 contracts5 for mineral exploration in four different mineral provinces of the Area. Each province is characterised by the presence of one or more types of resources and environments. The Clarion-Clipperton Fracture Zone (CCZ) in the Central Pacific Ocean and the Northern Mid-Atlantic Ridge (N-MAR) in the Atlantic Ocean are characterised respectively by polymetallic nodules and sulphide deposits, while the Indian Ocean and the Northwest Pacific Ocean host a mix of mineral resource types.
To ensure environmental protection, the ISA is developing policies and procedures, such as Environmental Impact Assessments (EIAs), Environmental Management and Monitoring Plans (EMMPs), and Regional Environmental Management Plans (REMPs).6 While the first two procedures are under the contractors’ responsibility with the ISA overseeing the results, REMPs are designed and developed by the ISA. REMPs are environmental policy tools in which spatial and “other management tools to support informed decision-making
The characterisation of those ABMTs as non-use measures is in agreement with the definition of the term ‘non-use’ used by Guggisberg in Chapter 2 of this volume, ie ‘the absence of use’ of one or more natural resources in a given geographical space. The ABMTs prohibiting use that are included in the REMPs are hereafter referred to as ‘non-use measures’ or ‘non-mining measures’. The nature of these non-use measures remains sectoral towards deep-seabed mining activities only, since they are implemented to prevent the extraction of non-renewable mineral resources from the deep seabed.
REMP development is taking place in the four mineral provinces where exploration licenses have been granted. Currently, the only adopted REMP is in the CCZ in the Pacific Ocean.9 Three others REMPs are at different stages of development, with the most advanced in the N-MAR, followed by the Northwest Pacific Ocean and the Indian Ocean. Despite being an ongoing strategy for the protection of the marine environment, a REMP standardised development
The chapter starts with a brief overview of deep-seabed mining governance, through a discussion of the structure and organs of the ISA and their role in the development of non-use measures, as well as a presentation of REMPs and the non-use measures found therein (section 2). Section 3 then focuses on the timeline of events that led to the creation and implementation by the ISA of ‘non-use measures’ within the context of REMPs, as well as the conditions under which these non-use measures have been adopted or are to be adopted. To do so, we discuss and compare the process for the development of the CCZ REMP that led to the adoption of areas of particular environmental interest (APEIs) as non-mining measures and the process for the development of the N-MAR REMP that proposed sites in need of protection (SiNPs) and areas in need of protection (AiNPs).
2 Deep-Seabed Mining Governance
2.1 The International Seabed Authority
UNCLOS mandates the ISA to oversee seabed mining activities in the Area (prospecting, exploration, and exploitation of mineral resources),11 on behalf of humankind,12 and to take the necessary measures to ensure the effective protection of the marine environment.13 To fulfil its mandate, the ISA is developing the ‘Mining Code’, a legal and technical framework for deep-seabed mining, which includes rules, regulations, and procedures for mining activities in the Area, and which covers, amongst other things, marine environmental protection.14 While regulations on prospecting and exploration of minerals have
The ISA has three active principal organs: the Secretariat, the Assembly, and the Council,17 with its subsidiary organ: the Legal and Technical Commission (hereafter the Commission).18 The Secretariat is the ISA’s administrative organ and consists of four offices with technical, legal, political, and administrative functions. It supports the other organs of the ISA, organising the annual sessions, workshops, and technical meetings. The Assembly, the plenary organ formed by all member States, has the final decision-making competence.19 The Council has legislative and executive authority on the Mining Code and environmental directives based on the recommendations from the Commission.20 The Commission, now bringing together 41 experts in scientific disciplines as well as law, plays a central role in the formulation of rules and policy, including for environmental protection, and it has access to proprietary information acquired by the contractors to the ISA.21
Decision-making involves the Commission and the Council, with the Assembly having the final say in approving new measures and instruments. According to Article 165 of UNCLOS, recommendations from the Commission are reviewed and adopted by the Council or returned for further review.22 Both the Assembly and the Council have so far adopted decisions by consensus, but complex voting mechanisms are in place if needed.23
Exploration contracts with the ISA are approved through a multi-step process starting with the Commission reviewing and making recommendations
2.2 REMPs and Non-use Measures
REMPs are policy instruments developed by the ISA aimed at effectively managing and protecting the marine environment, including through non-use measures in regions targeted for deep-seabed mining. Simply speaking, REMPs include areas where mining is not allowed. Originating from the need to implement the precautionary approach mandated ante litteram by Article 145 of UNCLOS, REMPs are viewed as necessary to ensure the effective protection of the environment.26
As will be examined in detail in section 3, REMP development involves various stakeholders and an expert-driven phase to identify and develop measures to preserve critical habitats, species, and ecosystem functions. Following recommendations by the Commission, REMPs are adopted by the Council and presented to the Assembly through a report of the Secretary General.27 Concerns about inconsistent REMP development procedures have led to efforts to standardise the approach, as proposed by Germany, the Netherlands, and Costa Rica.28 A first version of the standardised procedure was put forward in 202229 and the latest version to date was presented during the 29th session of
As of September 2024, only the CCZ REMP has been adopted, with APEIs as non-mining measures.32 APEIs are very large square areas of 400 km of length per side, with an internal zoning: a core area of 200 × 200 km surrounded by a 100 km buffer zone. The core zone functions as full protection from direct and indirect impact of mining activities, while, in the buffer, indirect effects, such as the tail of a mining plume, are acceptable.
The N-MAR REMP is next in line, with SiNPs and AiNPs as proposed non-use measures.33 SiNPs are 11 confirmed active hydrothermal vents within existing exploration contract areas. They are defined as individual fine-scale sites identified to preserve the integrity of ecosystems and communities, including their structure, function, and associated features, from the direct and indirect impacts of mineral resource exploitation. SiNPs will be safeguarded from such impacts through a customised zoning system, tailored to local oceanographic conditions, site-specific geography and also to the effects of mineral extraction technology.34 AiNPs are three fracture zones described with the same
It is very important to keep in mind that APEIs and the proposed SiNPs and AiNPs represent very different approaches to non-use measures because their design is based on the environmental characteristics of the respective mineral provinces and the scientific knowledge available, as well as on different conservation criteria.
2.3 Criteria for Non-use Measures Site Selection
At the same time as the ISA was taking its first steps towards REMP development, criteria for the protection of open ocean and deep-sea habitats were established by other international organisations and entities such as the Food and Agriculture Organization (FAO) and the Conference of the Parties of the Convention of Biological Diversity (CBD). The FAO established criteria to identify Vulnerable Marine Ecosystems (VMEs),37 and the CBD to identify Ecologically or Biologically Significant Marine Areas (EBSAs), and to design a representative network of marine protected areas (MPAs) in open ocean and deep-sea environments (henceforth network criteria) (Table 11.1).38
During the CCZ REMP development process, the ISA recognised that the key design elements of APEIs resonated with the VME and network criteria,
Scientific criteria for VME (FAO), EBSA, and network of MPA s (CBD)
| Sources | Scientific criteria |
|---|---|
| Vulnerable Marine Ecosystem (VME) Criteria from the International Guidelines for the Management of Deep-sea Fisheries in the High Seasa | Uniqueness or rarity; Functional significance of the habitat, fragility; Life-history traits of component species that make recovery difficult; Structural complexity |
| Scientific criteria for identifying ecologically or biologically significant marine areas (EBSA) in need of protection in open-ocean waters and deep-sea habitatsb | Uniqueness or rarity; Special importance for life-history stages of species; Importance for threatened, endangered or declining species and/or habitats; Vulnerability, fragility, sensitivity, or slow recovery; Biological productivity; Naturalness |
| Scientific guidance for selecting areas to establish a representative network of marine protected areas, including in open ocean waters and deep-sea habitatsc | EBSA criteria (see above); Representativity; Connectivity; Replicated ecological features; Adequate and viable sites |
FAO International Guidelines for the Management of Deep-sea Fisheries in the High Seas (n 37)
CBD COP 9 Decision IX/20 (n 38) annex I
ibid annex II
Table prepared by Elisabetta Menini
In contrast, in the N-MAR REMP, the identification of SiNPs and AiNPs did not follow the network criteria. Instead, it focused on renown ecologically important features in the deep Atlantic Ocean, namely hydrothermal vents and fracture zones described through VME and EBSA criteria.43
2.4 Legal Nature of REMPs and Non-use Measures
Being environmental policy instruments, REMPs could be seen as devoid of legally binding effects. In fact, even before the CCZ REMP was first approved, challenges arose, with opinions fluctuating between characterising REMPs as legally binding instruments and limiting their function to an advisory one.44 It was even debated whether establishing such instruments fell under the mandate of the ISA. This issue was solved by arguing that REMPs are recommended by the Commission, and then adopted by the Council in line with its powers under Articles 145, 162, and 165 of UNCLOS. Article 145 provides that adopting the necessary and appropriate measures to guarantee the protection of the marine environment from the harmful effects generated by activities in the Area falls under the Authority’s mandate. Further, being the executive organ of the ISA, the Council has the power to establish the specific policies to be pursued by the Authority on any question or matter within the competence of the Authority;45 this therefore includes REMPs and their non-use measures.46
3 REMP Development and Reviews
Current REMPs’ procedures differ by mineral province, but they include similar key stages and actors. They start with an initial stage where scientific information and environmental data are compiled and synthesised into a Regional Environmental Assessment (REA) which describes the environmental knowledge and a Data Report which includes all usable data for spatial analysis.49 These products are compiled by or in collaboration with contractors and scientific experts.50 This is followed by an expert- and stakeholder-driven phase where information is analysed, during a series of technical workshops, to identify important areas for ecosystem preservation, guided by conservation principles and criteria, and facilitated by the Secretariat and Commission.51
In this section, a thorough description and comparative analysis of the development and decision-making processes that led to the adoption of the CCZ REMP (3.1) and the N-MAR REMP (3.2) serve as the foundation for examining how these processes have influenced the nature and content of the non-use measures (3.3), and the crucial roles played by scientific data in those processes (3.4).
3.1 REMP for the Clarion-Clipperton Fracture Zone
Since it was first explored, the CCZ has garnered attention as the most promising mineral province for its polymetallic nodule’s abundance and ore grade.52 The CCZ is a seabed region between Hawaii and Mexico in the eastern Pacific Ocean.53 Its extent in km2 is bigger than Europe. Its environment is heterogeneous, with a prevalence of large abyssal plains, sparse seamounts and abyssal hills, and channels along the fracture zones.54
The recognition of the need to intervene with an environmental management plan in the CCZ arose from the growing number of exploration contracts granted by the ISA within that region, going from six exploration contracts in the CCZ in 2001 to 17 at present.55
The process that led to the adoption of the CCZ REMP started in 2007 with the results of a collaborative project between the ISA, mining contractors, and scientists, to improve the knowledge of biodiversity distribution across the CCZ region, named the Kaplan Project.56 It proposed the establishment of a
Following the outcomes of the Kaplan project,58 the Commission presented, in 2008, recommendations for the “general design and guidelines for a system of preservation reference areas in the CCZ”.59 The recommendations also included a set of scientific and practical guidelines for the design, positioning and size of non-mining areas based on the scientific data and knowledge available at the time.60 The CCZ area was divided in nine sectors based on nutrients intake gradient, bathymetry, topography, and larval dispersal studies.61 This guided the positioning of the nine non-mining areas, in order to protect the full range of habitats and biodiversity across the CCZ. This first proposal had non-mining areas overlapping, however minimally, with existing mining claims.62
Taking into consideration the potential conflicts with the tenure over areas allocated for exploration, these non-mining areas, from this point called APEIs, were then moved completely outside of the exploration contracts in the CCZ
Finally, the CCZ REMP was adopted on 26 July 2012, as a ‘living’ document, meaning that the size, location, and number of APEIs would be reconsidered when new scientific information became available. Acknowledging the flexible nature of the REMP and the need for regular reviews every five years, the Council decided to adopt the plan without substantial modifications. The Council operationalised the CCZ REMP by approving its implementation, including the designation, on a provisional basis, of the nine APEIs’ network, over an initial three-year period.65 It also decided that, for a period of five years or until further review by the Commission or the Council, no application for approval of a plan of work for exploration or exploitation should be granted in areas overlapping with APEIs.66
Following the Council’s decision, the REMP update was scheduled to be undertaken before the end of the APEI three-year designation period in 2016.67 However, research expeditions took place slightly before and around the deadline,68 so the Commission decided to postpone the review.69 The new data from contractors shared with the Commission was presented at a 2018 workshop, together with other public data available.70 In 2020, new studies identified an increased number of different habitats based on environmental characteristics as well as size, density, and distribution of polymetallic nodules.71 Finally, in June 2021, the Commission confirmed the nine already established
Events shaping the development of the Regional Environmental Management Plan for the Clarion-Clipperton Fracture Zone
PREPARED BY ELISABETTA MENINI
3.2 Draft REMP for the Mid-Atlantic Ridge
The minerals of interest in the N-MAR are massive sulphide deposits associated with active, inactive or extinct hydrothermal vents along the mid-ocean ridge or other marine volcanic edifices.77 Hydrothermal vents are deep-sea ecosystems of great scientific interest because they are like oases for biological communities composed of vent-obligated species. Therefore, the attention of scientific experts in preserving hydrothermal vents is exceptionally high.
Along the N-MAR, three contracts of exploration for polymetallic sulphide deposits were signed between 2012 and 2018, with Russia, France, and Poland.78 The contract areas are distributed along the length of the ridge for approximately 370 km, and all the known active hydrothermal vents in the region fall within contract blocks, therefore putting the vent ecosystems at risk of harm.79 As polymetallic sulphide deposits can develop over and under the seabed, their exploitation would leave scars along seamounts and ocean ridges, changing the substrate’s properties and causing significant habitat loss.80
The scientific knowledge associated with the N-MAR is more site-specific than in other mineral provinces.81 The large amount of scientific information
In 2004, the ISA initiated a technical study on managing polymetallic sulphide mining, conducting various scientific workshops with experts to develop guidelines and identify research priorities.83 The technical study recommendations included the newly developed VME, EBSA, and network criteria to determine non-mining areas encompassing hydrothermal vents.
Subsequent to the ISA’s work, a multi-year project involving numerous experts operating in the North Atlantic Ocean collected environmental data to establish a roadmap for the development of a Strategic Environmental Management Plan for Mining in the Mid-Atlantic (SEMPIA). A final workshop was organised in 2015 with the support of the European Commission and other organisations,84 inviting representatives of the ISA, who however could not participate for budgetary constraints but welcomed the external initiatives by the scientific community.85 The workshop gathered numerous stakeholders, including scientists and experts of the region in different disciplines, contractors, and representatives from intergovernmental organisations.86 The report showed that most of the information available regarding the N-MAR was related to hydrothermal vents, while the rest of the benthic environment remained poorly known, an
All the information collected through the ISA technical study,91 the REA by the Atlantic REMP project funded by the European Commission in support of the ISA, and a Data Report drafted by the Marine Geospatial Ecology Lab of Duke University, was brought into the REMP development procedure as supportive documentation.92 The development of the N-MAR REMP by the ISA took place through three workshops curated by the Office of Environmental Management and Mineral Resources of the ISA’s Secretariat and followed the process schematised in Figure 11.2.93 The first two workshops (Szczecin-Poland 2018 and Evora-Portugal 2019) focused on the scientific assessment of the region, while the third one (online 2020) was dedicated to management approaches.94 Through a call for nomination, participants were selected by the ISA based on their level of scientific expertise in this region.95 Numerous participants attended all three REMP workshops, and participated to the previous technical study and SEMPIA project, which ensured continuity in terms of
It was during the Evora workshop in 2019 that non-use measures for the N-MAR were first discussed. The workshop participants suggested the creation of two types of non-use measures based on the morphological structure and size of individual locations known to be ecologically important in the area: the 11 active vent systems were described as SiNPs, and the three fracture zones in the region as AiNPs using VME and EBSA criteria.
After the third expert management-focused workshop, which happened virtually in 2020, the Draft N-MAR REMP was released in April 2022 for a public stakeholder consultation period of 50 days. This was the first public consultation in the history of REMPs.96 Delegations, observers, and scientists made numerous submissions, some of which were incorporated in the August 2022 version and still remain in the current draft.97
Two main challenges were highlighted in the submissions made by stakeholders during the public consultation.98 The first challenge is related to the absence of ABMTs enclosing SiNPs and AiNPs. The draft specifies that the definition of discrete ABMTs with core and buffer zones to protect SiNPs and AiNPs will require location-specific measures based on the information that the contractors will deliver to the Commission.99 The second challenge is the lack of application of network criteria in the Draft N-MAR REMP.100 While central to the CCZ REMP design, network criteria were only discussed, but not applied during the N-MAR REMP development, because workshop participants decided to prioritise well-known individual sites and proposed them as
However, the inclusion of network criteria in the N-MAR REMP, and additional work on the N-MAR REMP more generally, is currently hampered by the ongoing development of REMP guidance documents, which aims to create a standardised approach for the development of REMPs as well as a REMP template.103 Indeed, during the second part of the 27th session in 2022, the Council requested that the Commission only continue the revision of the N-MAR REMP after the standardised procedure is finalised.104
3.3 Crucial Factors Influencing the Design of Non-use Measures
The approach used during the development of the Draft N-MAR REMP is very different from the one used for the CCZ REMP, and this has had an impact on the design of non-use measures. First, the type and level of scientific knowledge available and the different environmental characteristics have influenced the outcomes. In the CCZ indeed, the generally limited scientific information and lack of location-specific knowledge led experts to use environmental characteristics known to influence deep-sea biodiversity to design the APEIs, resulting in a network of large and square-shaped areas. In contrast, the N-MAR’s habitat-specific knowledge allowed for a site-specific approach in the proposed SiNPs and AiNPs.
Second, the approaches also varied based on the type of mineral resource. The extent of mining exploration areas for massive sulphides remains much smaller compared to polymetallic nodules due to significantly different morphological characteristics associated with mineral deposition. This further
Process for the development, adoption and establishment of Regional Environmental Management Plans followed since the Northern Mid-Atlantic Ridge REMP
PREPARED BY ELISABETTA MENINI
Third, existing contracts have also had an impact on the design of non-use measures. As seen previously, the large APEIs’ location and size in the CCZ were based on biodiversity indicators, which at the time could not be calculated precisely. Because of this, and in order not to interfere with existing contracts, APEIs were placed outside exploration areas, consequently prioritising the rights of contractors. On the other hand, the direct knowledge of ecologically significant sites and areas in the N-MAR region allowed the identification of specific SiNPs, even inside contract areas for exploration. However, this is also part of the reason why SiNPs do not have an exact spatial definition yet; the characteristics of their non-mining area and associated zoning might depend on the contractors’ ability to develop technologies that will prevent serious harm while mining adjacent sites of interest. Hence, while SiNPs have been identified inside contract areas for exploration, the rights of the mining licenses are still prioritised in that the non-use measures’ exact spatial definition will have to adapt to the specificities of each operation.
Environmental data and scientific information act as important bases for the development of REMPs and identification of sites for non-use measures. Yet, the design of non-use measures in REMPs is challenged by scientific uncertainty and lack of environmental baseline data – as well as by the policy decision to prioritise the rights of existing exploration contracts.
At present, further research is needed to improve the scientific understanding of deep-sea ecosystems. The Authority is in a unique position to facilitate the gathering and sharing of such knowledge, by encouraging the collection of scientific data, by sharing environmental data, and by coordinating research activities in the Area.105 Moreover, environmental data collection is increasing through the EIAs that contractors must submit as part of their contracts.106 And the information included in these EIAs is an important source of data to design non-mining measures. For example, information on the results of the testing of mining components, their operational efficiency, and impact will be essential to implement zonation around SiNPs, since they are currently within contract blocks.
Even if more data is becoming available, there is still an issue of accessibility. Indeed, a lot of geophysical and geological data remain only available to the Secretariat and the Commission because they are deemed confidential by contract rules. As contractors must submit all data collected within their exploration activities to the ISA,107 this represents large sources of potentially important scientific information. At present, non-confidential information and environmental data are included in REMPs’ Data Reports108 and are made publicly available in the common data depository created by the ISA in 2019, DeepData.109
The public information available in DeepData is limited and often requires expert reading and treatment, which can hinder meaningful stakeholder
Notwithstanding this accessibility issue, DeepData’s impact is overall positive. It contributes to bigger datasets, which serve the portfolio of data used during the REMP procedure. Hence, DeepData has the potential for advancing knowledge of deep-sea marine ecosystems, especially within the REMP development, from the design of non-use measures to monitoring their effectiveness.112
Indeed, improved scientific knowledge will not only serve the development and revisions of REMPs and non-use measures, but also the evaluation of their effectiveness. New data and insight from contractors’ EIAs are also valuable for the development of environmental thresholds,113 key for assessing the effectiveness of non-use and other conservation and management measures. However, since no exploitation has begun in the Area, it is still too early to determine whether the REMPs’ non-use measures are effective in protecting the marine environment. In the meanwhile, the flexible structure of the REMPs allows for the integration of new environmental data to revise or expand existing non-use measures.114
The REMPs under the deep-seabed mining regime have been developed under varying circumstances, and this has led to the adoption of non-mining measures that differ in terms of their shape, size, location, and functioning. The establishment of the APEIs in the CCZ as the first non-use measure in the context of deep-seabed mining was the result of a growing demand for exploration licenses. The initial spatial definition of the APEIs was constrained by a substantial scientific uncertainty and by the need not to overlap with exploration contract areas. In the more recent Draft N-MAR REMP, the suggested non-use measures are the result of a much more participatory process that identified specific locations and areas to be protected on the basis of site-specific scientific knowledge.
Environmental data and scientific information, or the lack thereof, not only have shaped the development of REMPs and their non-use measures but also influence their effectiveness and their adaptiveness. Indeed, scientific workshops play a key role in creating REMPs and non-use measures (despite the prioritisation of contractor’s rights). Future REMP development and revisions will benefit from the growing availability of data from EIAs, an improved accessibility of DeepData, and increasing transparency through stakeholder consultation. As other REMPs are still in early development stages, greater participation from the scientific community and inclusion of indigenous knowledge, especially in regions like the Western Pacific Ocean, where island States might have a stronger voice, is expected.115
The way in which the development of REMPs is changing opens opportunity for a transparent collaboration and synergy among international conservation initiatives, such as through the involvement of more experts, preparatory workshops, stakeholder consultations, and the inclusion of conservation goals, criteria, and concepts from other international processes. At the same time, it facilitates the creation of a broader network of professionals and civil society with different expertise, but with the common goal of improving the conservation of the ocean.
Though REMPs and their non-use measures are limited to deep-seabed mining, they could contribute to a broader cross-sectoral approach to protection, alongside non-use measures from other activities. This potential may be facilitated by the recently adopted Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction
Acknowledgements
This chapter is part of Elisabetta Menini’s doctoral dissertation at Duke University. E. M. wishes to express gratitude to the Marine Geospatial Ecology Laboratory for their support and for the opportunity to participate in all the REMP technical workshops since 2019. We also extend our thanks to Giovanni Ardito for introducing E. M. and M. R. to the opportunity of contributing to this book, and to the editorial team for making its publication possible.
The views expressed in this chapter derive exclusively from my former affiliation as Assistant Professor of Public International Law, Utrecht University (The Netherlands) and are not endorsed by nor represent the views of my current employer.
United Nations Convention on the Law of the Sea (UNCLOS) (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 397, art 136.
ibid art 156.
ibid art 157.
ibid arts 1, 2, 3, 145; L. M. Wedding et al, “Managing Mining of the Deep Seabed” (2015) 349 Science 144; M. Lodge et al, “Seabed Mining: International Seabed Authority Environmental Management Plan for the Clarion-Clipperton Zone. A Partnership Approach” (2014) 49 Marine Policy 66.
The cobalt-rich ferromanganese crusts exploration contract sponsored by Brazil in the South Atlantic Ocean has been voluntarily terminated in 2022. However, on 26 July 2024, the Council approved a plan of work for exploration for polymetallic sulphide by the Earth System Science Organization-Ministry of Earth Sciences of the Government of India on the Area of the Indian Ocean (ISBA/29/C/23), leaving the current number (as of September 2024) of active contracts to 31, see ISA, “Exploration Contracts”, available at <https://www.isa.org.jm/exploration-contracts/> accessed 15 September 2024.
ISA Council, “Preliminary strategy for the development of regional environmental management plans for the Area” (2018) ISBA/24/C/3; ISA Council, “Statement by the President of the Council on the work of the Council during the first part of the twenty-fourth session” (2018) ISBA/24/C/8, para 9. Some forms of environmental assessment and monitoring procedures are already established under the exploration regulations (Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area (22 July 2013) ISBA/19/C/17; Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area (15 November 2010) ISBA/16/A/12/REV.1; Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area (27 July 2012) ISBA/18/A/11) but specific EIAs and EMMPs for exploitation activities are currently being negotiated by the Council.
ISA, “Regional Environmental Management Plans”, available at <https://www.isa.org.jm/protection-of-the-marine-environment/regional-environmental-management-plans/> accessed 15 September 2024.
REMPs are part of the ISA policy agenda for environmental management and occupy a central role among the strategic actions toward protecting the marine environment, as reflected in the Strategic Plan of the Authority for the year 2019–2023 and on its High-level action plan. REMPS are part of the instruments to contribute to the achievement of the 2030 Agenda for Sustainable Development, see ISA Assembly, “Decision of the Assembly of the International Seabed Authority to the strategic plan of the Authority for the period 2019–2023” (2018) ISBA/24/A/10, Strategic direction 3.2. Note the Strategic Plan of the Authority has been extended until 2025, and the High-level action plan is under review to accommodate the extension, see ISA Assembly, “Consideration, with a view to adoption, of the extended high-level action plan of the International Seabed Authority for the period 2019–2025” (2024) ISBA/29/A/8. See also ISA, “The Contribution of the International Seabed Authority to the Achievement of the 2030 Agenda for Sustainable Development” (2021), available at <https://www.isa.org.jm/wp-content/uploads/2021/02/ISA_Contribution_to_the_SDGs_2021.pdf> accessed 15 September 2024; ISA, “Draft regulations on exploitation of Mineral resources in the Area. Consolidated text” (2024) ISBA/29/C/CRP.1, reg 44bis.
ISA Council, “Decision of the Council of the International Seabed Authority relating to the review of the environmental management plan for the Clarion-Clipperton Zone” (2021) ISBA/26/C/58.
ISA Council, “Decision of the Council of the International Seabed Authority relating to the reports of the Chair of the Legal and Technical Commission” (2024) ISBA/29/C/24, para 12.
UNCLOS, art 157.
ibid art 160(1)(f)(i)-(g).
ibid art 145.
C. Blanchard, E. Harrould-Kolieb, E. Jones and M. L. Taylor, “The current status of deep-sea mining governance at the International Seabed Authority” (2023) 147 Marine Policy 105396.
Exploration regulations (n 6).
The need for initializing the regulations for exploitation dates back to the 17th session of the Authority in 2011, when the delegate of Fiji asked the President of the Council of the ISA to include the topic on the agenda of the following session. The current reference draft of the Exploitation regulations is the Consolidated text released on 16 February 2024 (n 8).
UNCLOS, art 158(1).
ibid arts 158(3), 163(1); Blanchard et al (n 14).
UNCLOS, arts 166–169; ISA, “The Secretariat”, available at <https://www.isa.org.jm/organs/the-secretariat/> accessed 15 September 2024.
UNCLOS, arts 161(1), 162.
ibid arts 163(2)-(3), 165 (e); ISA Council, “Decision of the Council of the International Seabed Authority relating to the election of members of the Legal and Technical Commission” (2022) ISBA/27/C/41.
UNCLOS, arts 160 (1)-(2) (f)(I) and (II).
ibid art 159(7)-(8); ISA Council, “Council rules of procedure” (1996) ISBA/C/12, art. 56(2), as per the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982 (1994 Agreement) (adopted 16 November 1994, entered into force 28 July 1996) 1836 UNTS 3, which has amended the relevant provisions of UNCLOS, art 161(8).
UNCLOS, art 162(2)(j).
Exploration regulations for polymetallic nodules (n 6) reg 27; Exploration regulations for crusts (n 6) reg 27.
ISA Council, “Guidance to facilitate the development of regional environmental management plans. Report and recommendations by the Legal and Technical Commission” (2022) ISBA/27/C/37.
ISA Assembly, “Report of the Secretary-General of the International Seabed Authority under article 166, paragraph 4, of the United Nations Convention on the Law of the Sea” (2013) ISBA/19/A/2, para 49.
ISA Council, “Procedure for the development, approval and review of regional environmental management plans. Submitted by the delegations of Germany and the Netherlands, with co-sponsorship by Costa Rica” (2020) ISBA/26/C/6; ISA Council, “Proposal for a template with minimum requirements for regional environmental management plans: a proposal for a standardized approach Submitted by the delegations of Germany and the Netherlands, with co-sponsorship by Costa Rica” (2020) ISBA/26/C/7.
ISBA/27/C/37 (n 26).
ISA Council, “Draft revised standardized procedure for the development, establishment and review of regional environmental management plans” (2024) ISBA/29/C/10; ISA LTC, “Recommendations on technical guidance for the development of Regional Environmental Management Plans in support of the Standardised Procedure and Template. Issued by the Legal and Technical Commission” (2024) ISBA/29/LTC/8.
ISBA/29/C/24 (n 10) para 12.
L. M. Wedding et al, “From Principles to Practice: A Spatial Approach to Systematic Conservation Planning in the Deep Sea” (2013) 280 Proceedings of the Royal Society B: Biological Sciences 20131684.
The N-MAR REMP proposal also includes Site and Areas in Need of Precaution (our emphasis). These are inferred hydrothermal vents sites and areas suitable for deep-sea corals that, based on remote measurements or habitat suitability models, could have an ecosystem significance and need protection. However, since these are site and areas yet to be identified as “in need of protection”, and currently have no proposed management measures of non-use, they are not considered in the present analysis. It is worth noting that, in the latest REMP standardized procedure and guidance documents presented by the Commission to the Council during the 29th session in July 2024, SiNPs and AiNPs were no longer included as non-use measures. Site of Particular Environmental Interest (SPEIs) is the new terminology introduced in the new documentation, and this type of non-use measure seems to technically correspond with SiNPs. While the term SPEIs provides coherence with the APEIs of the CCZ REMP, the relation between SPEIs, AiNPs and Sites in Need of Precaution is still unclear. Since the Council has, as of September 2024, yet to formally approve these documents and the new terminology, the focus of the present chapter remains on the non-use measures that have been developed in detail and discussed so far, ie AiNPs and SiNPs.
ISA Council, “Regional environmental management plan for the Area of the northern Mid-Atlantic Ridge with a focus on polymetallic sulphide deposits” (2022) ISBA/27/C/38 (N-MAR REMP), paras 41–44.
ibid paras 37–40
ibid paras 39(c), 43(b).
VMEs are fisheries management areas established under the FAO International Guidelines for the Management of Deep-sea Fisheries in the High Seas ((2008), available at <https://openknowledge.fao.org/items/c552376c-a207-46a1-a49a-91a79c213989> accessed 15 September 2024), to prevent adverse impact of bottom fisheries on vulnerable species, communities, or habitat in the high seas.
CBD COP, “Marine and Coastal Biodiversity, Convention of Biological Diversity” (2008) CBD COP 9 Decision IX/20, see Annex I “Scientific criteria for identifying ecologically or biologically significant marine areas (EBSA) in need of protection in open-ocean waters and deep-sea habitats” and Annex II “Criteria for the scientific guidance for selecting areas to establish a representative network of marine protected areas, including in open ocean waters and deep-sea habitats”.
ISA LTC, “Environmental Management Plan for the Clarion Clipperton Zone” (2011) ISBA/17/LTC/7 (CCZ REMP), para 27. Unfortunately, the document does not explain why EBSA criteria are not relied upon, see para 29.
EBSA criteria have been used by themselves to describe non-management areas in the ocean that are ecologically and biologically significant regardless of their inclusion in a network of areas. EBSAs are described through a scientific process and adopted by the CBD COP, see CBD COP Decision IX/20 (n 38).
Four additional APEIs were designed during the CCZ REMP revision in 2021, further explained in section 3.1 below.
CCZ REMP (n 39).
N-MAR REMP (n 34) Annex IV.
C. Blanchard and S. Gollner, “Area-based management tools to protect unique hydrothermal vents from harmful effects from deep-sea mining: A review of ongoing developments” (2022) 4 Frontiers in Political Science.
UNCLOS, arts 1, 162.
M. Lodge, “International Seabed Authority” (2011) 26(3) International Journal of Marine and Coastal Law 468.
ISA Council, “Relationship between the draft regulations on exploitation of mineral resources in the Area and regional environmental management plans. Note by the Secretariat” (2018) ISBA/25/C/4, para 6; Consolidated text (n 8) regs 44, 44bis, 44ter. The remaining brackets in the text indicating a lack of consensus.
Consolidated text (n 8) regs 44, 44bis.
ISBA/27/C/37 (n 26). According to the latest REMP standardised procedure (ISBA/29/C/10), REA are now referred to as Regional Environmental Characterization (REC).
P. P. E. Weaver et al, “Regional Environmental Assessment of the Northern Mid-Atlantic Ridge” (2019) ISA Technical Study No 28; J. Cleary et al, “Data Report: Workshop on the Regional Environmental Management Plan for the Area of the Northern MidAtlantic Ridge” (2019) Atlantic REMP Project.
ISA, “Report of the workshop on the Regional Environmental Management Plan for the area of the Northern Mid-Atlantic ridge” (2020), available at <https://www.isa.org.jm/publications/report-of-the-workshop-on-the-regional-environmental-management-plan-for-the-area-of-the-northern-mid-atlantic-ridge/> accessed 15 September 2024.
E. N. Shor, Scripps Institution of Oceanography: probing the oceans 1936 to 1976 (Tofua Press 1978) 373–438.
P. Halbach, G. Friedrich and U. von Stackelberg (eds), The manganese nodule belt of the Pacific Ocean: geological environment, nodule formation, and mining aspects (Enke 1988).
S. Kaiser, C. R. Smith, and P. M. Arbizu, “Editorial: Biodiversity of the Clarion Clipperton Fracture Zone” (2017) 47 Marine Biodiversity 259.
ISA, “Minerals: Polymetallic Nodules” (2023), available at <https://www.isa.org.jm/exploration-contracts/polymetallic-nodules/> accessed 15 September 2024. As of September 2024, there were still 17 existing exploration contracts for nodules in the CCZ.
The Kaplan Project ran from 2002 to 2007 and concluded with a workshop funded by The Pew Charitable Trusts: “Design Marine Protected Areas for Seamounts and the Abyssal Nodule Province in Pacific High Seas” (23–26 October 2007). More information can be found on the Kaplan Project at ISA, “The KAPLAN Project: Biodiversity, species ranges, and gene flow in the abyssal Pacific nodule province, predicting and managing the impacts of deep seabed mining” (2012), available at <https://www.isa.org.jm/kaplan-project-biodiversity-species-ranges-and-gene-flow-abyssal-pacific-nodule/> accessed 15 September 2024.
UNGA Res A/63/111 (2008) GAOR 63rd Sess, Supp 49, para 132.
Kaplan project (n 56); C. R. Smith et al, “Preservation reference areas for nodule mining in the Clarion-Clipperton zone: rationale and recommendations to the International Seabed Authority” (2008) Report of the workshop to Design Marine Protected Areas for Seamounts and the Abyssal Nodule Province in Pacific High Seas, 23–26 October 2007, University of Hawaii at Manoa, available at <http://www.soest.hawaii.edu/oceanography/faculty/csmith/MPA_webpage/documents/Smith%20et%20al.%20-%20Recommendations%20to%20the%20ISA%20for%20design%20of%20PRAs%20in%20the%20CCZ%20-%202-2008.pdf> accessed 15 September 2024.
ISA LTC, “Rationale and Recommendations for the Establishment of Preservation Reference Areas for Nodule Mining in the Clarion-Clipperton Zone. Summary outcomes of a workshop to design marine protected areas for seamounts and the abyssal nodule province in Pacific high seas, held at the University of Hawaii at Manoa, Hawaii, United States of America, from 23 to 26 October 2007” (2008) ISBA/14/LTC/2; CCZ REMP (n 39).
Smith et al (n 58).
ISBA/14/LTC/2 (n 59).
For other options, see Figure 3 in Wedding et al (n 32).
CCZ REMP (n 39).
A. Jaeckel, “The International Seabed Authority and the Seabed Mining Regime” in The International Seabed Authority and the Precautionary Principle (Brill Nijhoff 2017).
ISA Council, “Decision of the Council relating to an environmental management plan for the Clarion Clipperton Zone” (2012) ISBA/18/C/22, para 1.
ibid para 6.
ISA LTC, “Review of the implementation of the environmental management plan for the Clarion-Clipperton Fracture Zone Prepared by the secretariat” (2016) ISBA/22/LTC/12.
The Abyssline baseline Project (2013–2017) research cruises AB01 and AB02 were carried out in one license area; and the JPI Oceans Mining Impact project (2015–2017) research expedition SO239 was conducted in several license areas as well as in APEIs 3 and 6.
ISBA/26/C/58 (n 9).
ISA Council, “Review of the implementation of the Environmental Management Plan for the Clarion-Clipperton Zone Report and recommendations of the Legal and Technical Commission” (2021) ISBA/26/C/43.
K. A. McQuaid et al, “Using Habitat Classification to Assess Representativity of a Protected Area Network in a Large, Data-Poor Area Targeted for Deep-Sea Mining” (2020) 7 Frontiers in Marine Science 1066; K. Uhlenkott et al, “Investigating the Benthic Megafauna in the Eastern Clarion Clipperton Fracture Zone (North-East Pacific) Based on Distribution Models Predicted with Random Forest” (2022) 12 Scientific Reports 8229. See also the discussion in chapter 9 of this volume.
ISBA/26/C/58 (n 9).
US Department of Commerce and National Oceanic and Atmospheric & Administration, “Deep Seabed Mining: Approval of Exploration License Extensions” (2022) 87(166) Federal Register 52743.
Seabed Hard Mineral Resources Act (2002) 30 U.S.C. §§1401–1473.
C. Keating-Bitonti, “U.S. Interest in Seabed Mining in Areas Beyond National Jurisdiction: Brief Background and Recent Developments” (2024) Congressional Research Service In Focus IF12608, available at <https://crsreports.congress.gov/product/pdf/IF/IF12608> accessed 15 September 2024.
ISBA/26/C/43 (n 70) para 15, Annex.
R. E. Boschen et al, “Mining of Deep-Sea Seafloor Massive Sulphides: A Review of the Deposits, Their Benthic Communities, Impacts from Mining, Regulatory Frameworks and Management Strategies” (2013) 84 Ocean Coastal Management 54.
ISA, “Minerals: Polymetallic Sulphides” (2023), available at <https://www.isa.org.jm/exploration-contracts/polymetallic-sulphides/> accessed 15 September 2024.
G. Ardito, G. Andreone and M. Rovere, “Overlapping and fragmentation in the protection and conservation of the marine environment in areas beyond national jurisdiction” (2023) 9 Frontiers in Marine Science 1094266.
B. J. Murton et al, “Geological fate of seafloor massive sulphides at the TAG hydrothermal field (Mid-Atlantic Ridge)” (2019) 107 Ore Geology Reviews 903–925; P. E. Weaver and D. Billett, “Environmental impacts of nodule, crust and sulphide mining: an overview” in Rahul Sharma (ed), Environmental issues of deep-sea mining: Impacts, consequences and policy perspectives (Springer 2019) 27–62.
A. D. Thaler and D. Amon, “262 Voyages Beneath the Sea: a global assessment of macro-and megafaunal biodiversity and research effort at deep-sea hydrothermal vents” (2019) PeerJ e7397.
R. E. Boschen-Rose and A. Colaco, “Northern Mid-Atlantic Ridge Hydrothermal Habitats: A Systematic Review of Knowledge Status for Environmental Management” (2021) 8 Frontiers in Marine Science 657358.
C. L. Van Dover et al, “Environmental management of deep-sea chemosynthetic ecosystems: justification of and consideration for a spatially-based approach” (2011) ISA Technical Study No 9.
The SEMPIA Workshops were supported by funding from the European Union Seventh Framework Programme (FP7/2007–2013) under the Managing Impacts of Deep-Sea Resource Exploitation (MIDAS) Project (grant agreement no 603418), Direção Regional dos Assuntos do Mar, Governo Regional dos Açores, the Deep-Sea Conservation Coalition, the PEW Charitable Trusts, the Deep Sea Conservation Coalition, the Kaplan Fund, and Oceans 5.
ISA LTC, “Implementation of the environmental management plan for the Clarion-Clipperton Fracture Zone and development of other environmental management plans in the Area. Note by the secretariat” (2015) ISBA/21/LTC/9/REV.1, para 10; ISA Council, “Report of the Chair of the Legal and Technical Commission on the work of the Commission during the twenty-first session of the International Seabed Authority” (2015) ISBA/21/C/16.
For the list of participants and their affiliation, see in D. C. Dunn et al, “A Strategy for the Conservation of Biodiversity on Mid-Ocean Ridges from Deep-Sea Mining” (2018) 4 Science Advances eaar4313.
T. Morato et al, “Towards Development of a Strategic Environmental Management Plan for Deep Seabed Mineral Exploitation in the Atlantic Basin (Pre-Workshop Data Report)” (2015), available at <http://www.eu-midas.net/sites/default/files/Workshops/SEMPIA/SEMPIA_Data_Report_lowres.pdf> accessed 15 September 2024.
Dunn et al (n 86).
ibid.
Weaver et al (n 50); Cleary et al (n 50).
Van Dover et al (n 83).
ISA, “Workshop on the Regional Environmental Plan for the Area of the Northern Mid Atlantic Ridge” (2019), available at <https://www.isa.org.jm/events/workshop-on-the-regional-environmental-plan-for-the-area-of-the-northern-mid-atlantic-ridge/> accessed 15 September 2024.
For responsibility of the Office of Environmental Management and Mineral Resources, see ISA (n 19); ISBA/27/C/37 (n 26) Table at 4.
Workshop on the Development of a REMP for the Area of the Northern Mid-Atlantic Ridge with a Focus on Polymetallic Sulphides Deposits (Virtual Meeting, 23 November 2020-4 December 2020).
ISA Workshop 2019 (n 92).
ISA, “Draft regional environmental management plan for the northern Mid-Atlantic Ridge open for consultation until 3 June” (14 April 2022), available at <https://www.isa.org.jm/news/draft-regional-environmental-management-plan-northern-mid-atlantic-ridge-open-consultation/> accessed 15 September 2024.
N-MAR REMP (n 34).
ISA, “Draft REMP for the northern Mid-Atlantic Ridge – Submissions” (2022), available at <https://www.isa.org.jm/protection-of-the-marine-environment/regional-environmental-management-plans/northern-mar/#1678465863103-ff1b8b3c-c39b> accessed 15 September 2024.
N-MAR REMP (n 34) paras 39(c), 43(b).
ISA, “Report of the Workshop on the Regional Environmental Management Plan for the Area of the Northern Mid-Atlantic Ridge. 25–29 November 2019, Evora, Portugal” (2020) 79 para 5, available at <https://www.isa.org.jm/wp-content/uploads/2022/06/evora_workshop.pdf> accessed 15 September 2024; ISA, “Report of the Workshop on the development of a Regional Environmental Management Plan for the area of the Northern Mid-Atlantic Ridge with a focus on polymetallic sulphides deposits. 23 November-4 December 2020” (2020), available at <https://www.isa.org.jm/wp-content/uploads/2022/12/Final_Draft_workshop_report-nMAR_REMP.pdf> accessed 15 September 2024.
ibid.
N-MAR REMP (n 34) para 33.
ISBA/27/C/37 (n 26). Part of the procedure described within this guidance document comes from a joint submission made in 2020 by Germany and the Netherlands, co-sponsored by Costa Rica (ISBA/26/C/6 and ISBA/26/C/7 (n 28)), which suggested specific procedure standards for the development, review and approval of REMPs and REMP templates. These were developed during a workshop in Hamburg in 2019, see S. Christiansen, H. Ginzky and P. Singh, “Towards a standardized approach to Regional Environmental Management Plans in the Area – International Workshop” (2020), available at <https://www.umweltbundesamt.de/sites/default/files/medien/2875/dokumente/remp_workshop_report.pdf> accessed 15 September 2024.
ISA Council, “Draft decision of the Council of the International Seabed Authority relating to the approval of the regional environmental management plan for the Area of the northern Mid-Atlantic Ridge with a focus on polymetallic sulphide deposits” (2022) ISBA/27/C/L.6.
UNCLOS, art 143.
For examples of EIAs in the CCZ and Indian Ocean, see Indian Ministry of Earth Sciences, “Environmental conditions and likely impact in the area selected for nodule collection trials at the Indian PM extension site in the Central Indian Ocean Basin collection trials at the Indian PM extension site in the Central Indian Ocean Basin” (2020), available at <https://moes.gov.in/writereaddata/files/India_PMN_EIS_Jan_2020.pdf > accessed 15 September 2024.
Exploration regulations for polymetallic nodules (n 6).
Cleary et al (n 50).
ISA, “DeepData Database”, available at <https://www.isa.org.jm/deepdata-database/> accessed 15 September 2024.
M. Rabone et al, “A review of the International Seabed Authority database DeepData: challenges and opportunities in the UN Ocean Decade” (2022) bioRxiv.
ISA LTC, “Recommendations for the guidance of the contractors for the assessment of the possible environmental impacts arising from exploration for marine minerals in the Area” (2020) ISBA/25/LTC/6/REV.1, para 41.
Rabone et al (n 110).
BGR – Federal Institute for Geosciences and Natural Resources, “Environmental Impact Assessment for the Testing of a Pre-Protoype Manganese Nodule Collector Vehicle in the Eastern German License Area (Clarion-Clipperton Zone) in the Framework of the European JPI-O MiningImpact 2 Research Project” (2022), available at <https://miningimpact.geomar.de/documents/1082101/1299978/EIA_BGR_submission.pdf/29ebe7dc-f231-45f7-8d3b-02da41899d94> accessed 15 September.
G. Ardito and M. Rovere, “Racing the clock: Recent developments and open environmental regulatory issues at the International Seabed Authority on the eve of deep-sea mining” (2022) 140 Marine Policy 105074; Ardito, Andreone and Rovere (n 79).
ISBA/29/LTC/8 (n 30).
See the discussion by Klerk in chapter 4 of this volume.
See eg S. Robb, A. Jaeckel and C. Blanchard, “How could the BBNJ Agreement affect the International Seabed Authority’s Mining Code?” (2023) EJIL: Talk!, available at <https://www.ejiltalk.org/how-could-the-bbnj-agreement-affect-the-international-seabed-authoritys-mining-code/> accessed 15 September 2024; K. Willaert, “The interaction between the BBNJ Agreement and the international deep sea mining regime: more questions than answers?” (submitted) Ocean Development & International Law.
Indeed, the BBNJ Agreement provides that initiatives should not undermine “relevant legal instruments and frameworks and relevant global, regional, subregional and sectoral bodies and that promotes coherence and coordination with those instruments, frameworks and bodies”, see Agreement under the UNCLOS on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction, Document A/CONF.232/2023/4 (30 June 2023), art 5(2).
Robb, Jaeckel and Blanchard (n 117); S. Robb, “Contributing to Coherent Area-based Management Tool (ABMT) Networks in ABNJ: A Comparative Analysis of the BBNJ Agreement and ISA ABMT Processes” (forthcoming 2024) International Journal of Marine and Coastal Law.