Preview of Proposed ISA Fundamental Policies and Principles
Over the coming weeks we will be looking at sections of the “Draft regulations on exploitation of mineral resources in the Area” which have been prepared by the International Seabed Authority’s (ISA) Legal and Technical Commission.
As one can see from the document title, these regulations are not final. However, the ISA is fairly far along in its regulation-building process, and some insight can be gained by reviewing the text as it stands in draft form.
Because proposed Regulation 1 simply looks at the terms and scope of the proposed regulations, let’s skip straight ahead to Regulation 2: Fundamental policies and principles.
In furtherance of and consistent with Part XI of the Convention and the Agreement, the fundamental policies and principles of these regulations are, inter alia, to:
(a)Recognize that the rights in the Resources of the Area are vested in mankind as a whole, on whose behalf the Authority shall act;
(b)Give effect to article 150 of the Convention by ensuring that activities in the Area shall be carried out in such a manner as to foster the healthy development of the world economy and the balanced growth of international trade, and to promote international cooperation for the overall development of all countries, especially developing States, and with a view to ensuring:
(i)The development of the Resources of the Area;
(ii)Orderly, safe and rational management of the Resources of the Area, including the efficient conduct of activities in the Area and, in accordance with sound principles of conservation, the avoidance of unnecessary waste;
(iii)The expansion of opportunities for participation in such activities consistent, in particular, with articles 144 and 148 of the Convention;
(iv)Participation in revenues by the Authority and the transfer of technology to the Enterprise and developing States as provided for in the Convention and the Agreement;
(v)Increased availability of the minerals derived from the Area as needed in conjunction with minerals derived from other sources, to ensure supplies to consumers of such minerals;
(vi)The promotion of just and stable prices remunerative to producers and fair to consumers for minerals derived both from the Area and from other sources, and the promotion of long-term equilibrium between supply and demand;
(vii)The enhancement of opportunities for all States Parties, irrespective of their social and economic systems or geographical location, to participate in the development of the resources of the Area and the prevention of monopolization of activities in the Area;
(viii)The protection of developing countries from serious adverse effects on their economies or on their export earnings resulting from a reduction in the price of an affected Mineral or in the volume of exports of that Mineral, to the extent that such reduction is caused by activities in the Area;
(ix)The development of the common heritage for the benefit of mankind as a whole; and
(x)That conditions of access to markets for the imports of minerals produced from the resources of the Area and for imports of commodities produced from such minerals shall not be more favourable than the most favourable applied to imports from other sources.
(c)Ensure that the Resources of the Area are Exploited in accordance with sound commercial principles, and that Exploitation is carried out in accordance with Good Industry Practice;
(d)Provide for the protection of human life and safety;
(e)Provide, pursuant to article 145 of the Convention, for the effective protection of the Marine Environment from the harmful effects which may arise from Exploitation, in accordance with the Authority’s environmental policy, including regional environmental management plans, based on the following principles:
(i)A fundamental consideration for the development of environmental objectives shall be the effective protection of the Marine Environment, including biological diversity and ecological integrity; (ii)The application of the precautionary approach, as reflected in principle 15 of the Rio Declaration on Environment and Development;
(iii)The application of an ecosystem approach;
(iv)The application of “the polluter pays” principle through market-based instruments, mechanisms and other relevant measures;
(v)Access to data and information relating to the protection and preservation of the Marine Environment;
(vi)Accountability and transparency in decision-making; and
(vii)Encouragement of effective public participation;
(f)Provide for the prevention, reduction and control of pollution and other hazards to the Marine Environment, including the coastline;
(g)Incorporate the Best Available Scientific Evidence into decision-making processes;
(h)Ensure the effective management and regulation of the Area and its Resources in a way that promotes the development of the common heritage for the benefit of mankind as a whole; and
(i)Ensure that these regulations, and any decision-making thereunder, are implemented in conformity with these fundamental policies and principles.