SEABED COUNCIL TAKES UP ENVIRONMENTAL PART OF MINING CODE

Press Release
SEA/1660

SEABED COUNCIL TAKES UP ENVIRONMENTAL PART OF MINING CODE

(Received from the International Seabed Authority.)

KINGSTON, 22 March -- The Council of the International Seabed Authority, resuming its discussion on draft regulations for mineral exploration, devoted its informal proceedings this afternoon in Kingston to regulation 32, the key clause on protection and preservation of the marine environment.

The Council began its second reading of part V -- the environmental provisions of draft regulations on prospecting and exploration for polymetallic nodules in the international seabed area -- following its initial discussion of those clauses last August. This is one of nine parts in the text (ISBA/5/C/4/Rev.1) to which the Council is devoting most of its current two-week session, through 31 March. The earlier consideration left unresolved a major issue concerning the environmental obligations of deep-sea contractors who will operate under the Authority's rules when exploring for these mineral riches.

As currently drafted, regulation 32, composed of six paragraphs, obliges the Authority to "establish and keep under periodic review environmental rules, regulations and procedures to ensure effective protection for the marine environment from harmful effects which may arise from activities" in the international seabed area. Each seabed contractor would be required to "take precautionary measures to anticipate, prevent or minimize adverse impacts on the marine environment arising from its activities in the area as far as reasonably possible using the best available technology".

The regulation goes on to require environmental monitoring and annual reports by contractors, as well as cooperation by States with the Authority's monitoring and evaluation programmes. If a contractor applies for exploitation rights, it would have to set aside "impact reference zones" where the environmental effect of its activities could be assessed, and mining-free "preservation reference zones" to assess changes in flora and fauna.

Most of today's debate centred on a proposal by the Netherlands, concerning precautionary measures to be taken to prevent environmental degradation. The proposal (ISBA/5/C/L.8), resulting from informal consultations last August, is based on principle 15 of the Rio Declaration on Environment and Development, adopted in Rio de Janeiro in 1992 by the United Nations Conference on Environment and Development.

The main clause of the proposal reads: "In the conduct of activities in the Area, the precautionary principle shall be applied to protect and preserve the marine environment, by virtue of which cost-effective preventive measures are to be taken when there are reasonable grounds for concern that these activities may cause

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serious harm to the marine environment, even where there is lack of full scientific certainty".

According to the proposal, the Authority's Legal and Technical Commission would make recommendations to the Council on the implementation of that clause, including a list of exploration activities deemed to have no potential for harming the environment.

Divergent positions were expressed today on whether to incorporate the Netherlands text. One speaker put forward the view that the 1982 United Nations Convention on the Law of the Sea, in article 145, amply covered all issues concerning protection of the environment, so that there was no need to invoke the precautionary principle in the draft code. She felt that contractors, who had to make large capital outlays, would be deterred from investment if there was a divergence of approach between the regulations and the underlying Convention and the 1994 Agreement relating to the implementation of Part XI (seabed provisions) of the Convention. That speaker cited scientific research indicating that prospecting and exploration on the seabed, including such activities as basket sampling, had no harmful effects on the marine environment.

Some delegations supported that view and maintained that the precautionary principle was vague and could be interpreted in many ways, and thus was not suitable in a legal document. It was unnecessary, they thought, to import this "new concept" into the regulations when neither the Convention nor the 1994 Agreement made reference to it. They felt that "reasonable grounds for concern" could be very broadly interpreted and could place stumbling blocks in the way of investors.

However, most speakers this afternoon supported the Netherlands proposal. One remarked that the precautionary principle was not a new concept and had been a full- fledged principle of international law for a number of years. Another called for a reference to be made in the regulation to principle 15 of the Rio Declaration. It was also argued that, since exploration activities were deemed to have little impact on the environment, contractors should have no reservations about applying the principle.

One member observed that several countries involved in deep-seabed exploration were already taking measures to protect the environment. Thus, the problem might be one of wording rather than substance, and could be resolved by the Legal and Technical Commission.

Another speaker suggested that suitable wording might be found in part XII of the Convention, which deals with protection and preservation of the marine environment. He referred specifically to articles 204 (monitoring of the risks or effects of pollution), 205 (publication of reports) and 206 (assessment of potential effects of activities). Another suggestion was to consider the term "necessary measures".

In response to the assertion by some members that the precautionary principle was not in keeping with the Convention and the Agreement, one speaker remarked that knowledge about the environment and how to protect it had advanced significantly since the signing of the Convention nearly two decades ago. Moreover, the Agreement, which had come into effect only in 1994, did not reflect any lessening of concern about protection of the marine environment. Others observed that, while

the Convention might not contain the exact words "precautionary principle", they were implied in its spirit.

Secretary-General Satya N. Nandan, commenting on issues raised this afternoon, dealt with a question by one delegation as to whether regulation 32 might conflict with the 1992 Convention on Biological Diversity. Mr. Nandan noted that the Law of the Sea Convention provided for the application of other rules of international law. As to whether States could impose their own demands on the contractors they sponsored, the Secretary-General said the code would allow such States to impose any environmental conditions they wished.

Turning to the Netherlands proposal, Mr. Nandan suggested that the Council consider the term "precautionary approach" as a way of reaching a compromise while sticking as closely as possible to the Convention and avoiding inconsistencies. He recommended "marrying" the substance of articles 204, 205 and 206 of the Convention with the “precautionary approach”, and suggested that delegates hold small group meetings to iron out differences.

Some delegates had questioned the paragraph requiring contractors seeking exploitation contracts to propose areas for use as impact reference zones and preservation reference zones. They thought it unnecessary to include a reference to exploitation, as the current text dealt only with exploration. Commenting on that point, Mr. Nandan said it had been included by the Legal and Technical Commission and was intended to forewarn contractors, who might apply for exploitation rights, of the conditions under which they would be required to operate.

The Council will meet in formal session at 11 a.m. tomorrow, 22 March, to elect a president for this session and to consider a candidate for a new seat on the Legal and Technical Commission. The decision on a president had been deferred at the opening of the session yesterday on the request of the Asian Group, whose turn it is to nominate a candidate. Following the formal sitting the Council will resume its work on the environmental part of the draft mining code in informal session. Once it finishes that part, it will move on to part VI, on confidentiality of data and information.

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