Research On Environmental Protection Of International Seabed Area

Half a century ago since the delegation of Malta,Pardo,provided the concept of“Common Heritage of Mankind”(hereinafter “CHM”),the United Nation Convention on Law of the Sea(hereinafter “UNCLOS”)has played as a “Sea Charter” in governing activities of the sea by the mankind.International seabed(hereinafter“Area”),which is beyond the jurisdiction of nations,is defined as CHM.Up until now,polymentallic nodules,polymentallic sulphides and cobalt-rich ferromanganese crusts have been found to be economically useful for industry.The International Seabed Authority(hereinafter “Authority”)takes the charge of management and control of this Area.as the knowledge of the Area is developing accordance with the technology,and the uncertainty is of great importance in the marine environmental protection,there is an emergency in establishing environmental-protection approaches to maintain activities in the Area in an orderly manner.In making activities in the Area available,the Authority is entitled to adopt concrete rules,regulations and procedure.And here comes the Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area,Regulations on Prospecting and Exploration for Polymetallic Sulphides in the Area and Regulations on Prospecting and Exploration for Cobalt-rich Ferromanganese Crusts in the Area(otherwise different articles within three regulations exist,hereinafter “Regulations”as a whole),in which establish the environmental approaches,including,necessary measures,Precautionary Approach,Environmental Impact Assessment,Best Environmental Practice,Environmental Baselines and Monitoring,as well as Emergency Order.However,there are also problems with these approaches.First,the exercise of the environmental approaches depends too much on the Contractors,which may lead to “negative incentive” and “moral risks”.For example,the Best Environmental Practice and the collection of Environmental Baseline,as well as the report of the emergent situation in the Area that may result in an Emergency Order are all in charge of the Contractors themselves.Second,although the Seabed Chamber of International Tribunal of Law of Sea provided an advisory opinion to illustrate the non-difference between the developing countries and developed countries in terms of the liability and responsibility of environmental damages,the different capacity of states is a great concern in exercising of the approaches.Third,since the risk level is unclear in the protection of Area's environment,it is hard to gain a “cost-and-benefit” outcome in applying the approaches such as precautionary approach and best environmental practice.Forth,it is not easy to implement the monitor activities.Because the monitor only relies on the active report by contractors,rather than the Authority itself.In order to solve these problems,the CHM a play a significant role in improving the environmental regime.There are five elements,reflected from the UNCLOS and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies(hereinafter “Moon Agreement”),contained in CHM,which includes:non-appropriation;sharing interest;peaceful purpose,common management and protection of marine environment for generations.The scope of the CHM is “areas beyond the national jurisdiction”.In examining the negotiation papers of the UNCLOS,environmental protection is not an element at the beginning of the negotiation.However,it had been identified as an element of this principle which governs the areas beyond national jurisdiction,when the Declaration of Principles Governing the Seabed and the Ocean Floor,andthe Subsoil Thereof,beyond the Limits of National Jurisdiction(hereinafter“Declaration of Principles”)came into effect and was accepted by all the member states.The Principle of CHM has formulated as a customary international law,or at least in the formation of customary international law.It is worth noting that the customary and international treaties can have a parallel position in governing the international matters even they have similar rules.The Declaration of Principles has a great significance in the formation of CHM,because it has been considered as the opinio juris.The Authority,as an international organization,is entitled to creating the rules,regulations and procedure,which set a certain regime for the states to explore and exploit the Area.It reflects the common opinion juris of member states as well.It can not be ignored that the states practice is hard to begin the first step in the area beyond national jurisdiction.However,this is not an excuse to postpone the environmental protection of this area.Furthermore,there are a number of arguments believe that the state practice is not as important as it used to be and opinion juris is the most important evidence in the proof of customary international law.Therefore,the CHM has been a customary international law governing the areas beyond national jurisdiction.In addition,this principle is developing as the development of the international community,thereby providing new approached to improve the area regime.The improvement of the environmental protection can be addressed from the CHM in three ways.First,although there is no rules in terms of establishing independent expert review regime under the UNCLOS and relative instruments,the Authority is in fact,flows from the CHM,has the “implied power” as an international organization to adopt such rules.The purpose of the involvement of the independent expert is to evaluate the environmental impact in an objective way,and to review the environmental practices on behalf of the Authority.Second,“sharing benefits” is an element in CHM not only requires the finance sharing,but also the sharing of environmental information and database.Although not allow specifically in the UNCLOS and Regulations,sharing the environmental data is not prohibited by them.Free access to environmental information is able to fill the gap of people's uncertainty and the certainty in the Area,which might be helpful to establish the risk level to satisfy the cos-and-effect goal of Precautionary Approach.Fourth and last,according to the requirement of Common Management,the Authority should have the “implied power” to monitor the activities of the Area on behalf of the interest of mankind as a whole.In 2017,the Authority released the Draft Regulations on Exploitation of Mineral Resources in the Area.In terms of environmental protection,although many rules are involved in the regime of environmental protection,there are still some problems that need clarified.For example,the rights of contractors are limited,whereas the obligations is numerous;the Good Industry Practice is a term that is first used in the Area regime,which might cause conflicts among present approaches like“precautionary” and “Best Environmental Practice”;the “ecosystem approach” is abstract and lack of concrete as subject to the knowledge of deep seabed ecosystem;and the “serious damages” need more clarified as the risk level has not been established.