Publication Details
A Jaeckel, ‘The Implementation of the Precautionary Approach by the ISA’ ISA Discussion Paper No. 5; pp. 1-13 (International Seabed Authority, 2017)
Introduction
This paper discusses a range of measures that would contribute to the implementation of the
precautionary approach by the International Seabed Authority (ISA). The precautionary approach is a
key tool to address the environmental protection challenges posed by deep seabed mining, both at a
regulatory and at a management level. At its core, the precautionary approach requires adequate
environmental protection through the taking of early action in response to risks of environmental
harm, even in the context of scientific uncertainty. As early as 2003, the UN General Assembly called
upon actors, such as the ISA, to investigate how they can integrate precautionary biodiversity
protection into their work, calling on:
‘the relevant global and regional bodies, in accordance with their mandates, to investigate urgently how
to better address, on a scientific basis, including the application of precaution, the threats and risks to
vulnerable and threatened marine ecosystems and biodiversity in areas beyond national jurisdiction.’1
The Exploration Regulations adopted by the ISA specifically oblige all actors (the ISA, sponsoring
states, and mining operators) to apply the precautionary approach.2
Moreover, in its landmark
Advisory Opinion in 2011, the Seabed Disputes Chamber supported the precautionary approach and
identified it as an element of the general obligation of due diligence by sponsoring states.3
However,
the challenge lies in translating the abstract obligation of the precautionary approach into
meaningful practical actions.
This paper seeks to contribute to the discussion about how the ISA can give effect to the
precautionary approach, both during the exploration phase and, in particular, in the context of
developing the future regulations for mineral exploitation. This paper is based on the findings of a
larger research project that examined whether, and in what manner and to what extent, the ISA has
implemented the precautionary approach during the mineral exploration phase. This serves to
highlight successes but also gaps and lacunae in the application of precaution as well as mechanisms
and means through which precautionary management of deep seabed mining can be better
implemented in the future. The detailed findings of the study are discussed in: Aline L. Jaeckel, The
International Seabed Authority and the Precautionary Principle ‐ Balancing Deep Seabed Mineral
Mining and Marine Environmental Protection (Brill, Feb 2017),
http://www.brill.com/products/book/international‐seabed‐authority‐and‐precautionary‐principle.
This paper first provides a brief summary of what the implementation of the precautionary approach
entails (section 2), including the question around the burden of proof (section 3). Section 4 then
summarises the extent to which the ISA has implemented the precautionary approach. Finally,
section 5 provides a list of potential measures that would contribute to the implementation of the
precautionary approach in practice.