An EIA process for deep sea mining in the Area: facing key issues in an international context

With the fast rising sector of deep seabed mining, and the increasing number of exploration contracts in the international area of the deep seabed (the Area), The International Seabed Authority is urged to produce a mining legislation addressing the exploitation phase. One of the major elements of the exploitation regulations under draft will be to design and operationalize a process for environmental impact assessment (EIA) prior, during and post mining activities. While trying to put in place such a mechanism, the ISA will be confronted with key issues due to its nature as an international organisation. Indeed, the ISA decision-making follows a diplomatic process. Member States meet annually to adopt regulations and approve contracts for exploration (and eventually exploitation). To design a review process for mining applications and further monitoring activities, one cannot ignore the specificities of the ISA structure and decision-making process. The three elements that will be presented in this paper can be identified as good practice in EIA in view of national and regional legislations, and of the 2014 stakeholder survey results. However, they are likely to pose issues in the drafting of an exploitation regulation. Can it be done in accordance with the Law of the Sea Convention (LOSC), which provides the legal basis for States to act? What guarantees are needed in such a regulation to ensure independence and transparency? How can the elements of a satisfactory EIA process be included in the time frames of the ISA’s meetings and decision-making procedure? • Independent Peer Review: As seabed minerals are the Common Heritage of Mankind (CHM), it is likely that the International Community will not find it acceptable if the evaluation of impacts relied exclusively on the ISA organs. However, we will see that setting up an ad hoc expert group for the review of contractors’ submissions, as suggested by the survey’s responses and which should be external to the ISA, might not be as easy as it sounds. • Public participation: Again, the CHM factor brings up the issue of publicity. Making a maximum of information publicly available online may not be sufficient, considering the practice of including a public consultation phase in evaluation processes, particularly in Europe. While organising an online consultation may not be too difficult as such, making sure that the inputs and concerns raised thereby will be taken into consideration in the decision-making process is likely to be much more challenging. • “EIA Committee”: Taking into account the expertise needed to evaluate the significance of impacts and to make its decisions accordingly, the creation of an additional organ within the ISA has been advised and should be considered. This organ should be representative of a multidisciplinary expertise to the service of stakeholders as an advisory body. It should make recommendations to both contractors during their EIA development, and to the ISA organs on their evaluation of applications and monitoring reports. However, to actually bring added value to the EIA process, this “EIA committee” has to be independent. Independence is one of the most challenging goals to be achieved in a context where States nominate and elect members of the ISA organs. This paper aims at pointing out key issues in the development of an EIA framework for exploitation in the Area, raising questions and proposing lines of approach for further thoughts. After a brief introduction reminding the ISA structure and the different stages of an EIA process, it will focus on the above-mentioned key issues by searching for the legal basis provided by the LOSC and the procedural guarantees needed in the coming Regulations to achieve an efficient and meaningful EIA process.