DSM Project: Law and Policy

1. DSM Project:Law and Policy SPC-EU Deep Sea Minerals (DSM) ProjectInaugural Regional Workshop Hannah Lily Legal Advisor – DSM Project 6 June 2011, Nadi

2. Context • Pacific region leading the way in DSM exploration • Potential for increased investment and income • Threat to ecological equilibrium • Obligation to preserve natural heritage for the benefit of present and future generations • International law obligations require adoption of appropriate administrative measures • National DSM law and policy lacking

3. Why a regional approach to law and policy? • Ocean: interconnected, interdependent, transboundary • States’ share characteristics and interests • 2009 SOPAC Governing Council Members’ Decision • Co-ordinated comprehensive approach • Resources, facilities and knowhow can be shared • DSM Projects may be cross-border multi-jurisdictional • Stable, clear and consistent regional framework will encourage development and investment

4. UNCLOS • UN Convention on the Law of the Sea 1982 • Established Exclusive Economic Zone (EEZ) • States given sovereign right to exploit, develop, and manage natural resources within its own EEZ • Obligation to safeguard marine environment under their jurisdiction from damage or pollution • Protection of scientific research • States liable for damage caused by UNCLOS violation • National rules must be adopted

5. Other legal instruments (1) • Regional Conventions / Agreements: • Noumea Convention • Regional and collaborative approach • EIA and public consultation • Madang Guidelines • Sovereignty and self-determination. • Pacific Islands Regional Policy (PIROP) • Proactivity • Integrated approach. • Engagement of local communities.

6. Other legal instruments (2) • Other international law / agreements: • London and MARPOL Conventions • 1992 Rio Declaration (precautionary approach) • Convention on Biological Diversity (CBD) • Manado Declaration • Climate Change Convention (UNFCCC)

7. Other legal instruments (3) • National law: • Economic • Environmental • Marine • Mineral • Other regulation • Information • Law enforcement • Health and safety • Labour laws

8. Other useful sources • International Seabed Authority • Regulations and Model Contracts • International Tribunal for the Law of the Sea • Obligations of due diligence and best environmental practice • Precautionary approach • Standards same for developing and developed states • Industry • Other States

9. DSM Project: RLRF process • Individual State’s constitution and legislative processes • Stakeholder interest • Process Overview: • Identify existing legislation policy and gaps • Terms of Reference to guide development of RLRF • Development of RLRF • Dissemination of RLRF with implementation guidelines • Tailored support to individual countries

10. DSM Project:RFRL development method • Expert steering group • Establishment of sub-group(s) where necessary • Regional and sub-regional workshops • Country visits • Regular Project updates and ongoing consultation • National stakeholder workshops, and committees • Draft national legislation / polices, and consult • Enact, implement, monitor, review • Feedback mechanisms (all stakeholders)

11. Aspects of the RFRL • Incorporate international standards • Pre-empt harm – due diligence – registration / licensing • Recognise different stages of DSM • Responsible bodies and lines of authority • Fiscal regime • Environmental management • Monitoring and enforcement • Public accountability and information-sharing • Practical considerations • Methods of challenge, dispute resolution • Model documents / templates?

12. Thinking points • Regulation – how to balance: • enablement andenforcement; and • incentivising third party investment while protecting State interests • How to legislate to set a fiscal regime, or pre-empt negative environmental impact, when so much is unknown?