Title: Analysis of the International Seabed Authority Environmental Impact Assessment Regime during Exploration

CODE Project in collaboration with The Pew Charitable Trusts

Report Length: 18 pages

Disclaimer: This report was published in March 2023. Since then, developments in international law, ISA regulations, or scientific understanding may have occurred.

In “Analysis of the International Seabed Authority Environmental Impact Assessment Regime during Exploration,” the CODE Project — a consortium of international legal and scientific experts — presents a piercing critique of the ISA’s current environmental oversight mechanisms.

Drawing on decades of EIA best practices and benchmarked against international legal norms, the paper dissects the Authority’s handling of exploration-phase EIAs for deep-seabed mining in “the Area” — that is, the seabed beyond national jurisdictions.

Authored by specialists affiliated with institutions including the University of Waterloo, the University of New South Wales, and The Pew Charitable Trusts, and edited under the CODE Project umbrella, the report was published in March 2023.

Its purpose is to evaluate how closely the ISA’s current EIA procedures for exploration contracts align with global best practices.

At the heart of the report is a twelve-point evaluation framework, which identifies the fundamental components of an effective EIA regime — from policy foundation and legal enforceability to stakeholder consultation and post-permit monitoring.

The ISA fails to meet best practices in all twelve categories.

1. No Binding Environmental Policy

The ISA has not adopted a cohesive environmental policy or decision-making thresholds. This leaves regulators and contractors without clear criteria for assessing what level of environmental harm is acceptable, creating a regulatory vacuum that undermines consistency and accountability.

The rules governing exploration-phase EIAs are set out in the ISA’s “Recommendations,” which are not legally binding. Contractors are required only to “observe, as far as reasonably practicable,” leaving ample room for discretion and non-compliance without consequence.

3. No Iterative Engagement

There is no mechanism for continuous, structured communication between contractors and regulators throughout the EIA process. This hinders responsiveness and the ability to course-correct during the project’s lifecycle.

4 & 5. Lack of Formal Screening & Scoping Processes

There is no formal screening process to determine which activities require an EIA, nor a standardized scoping phase to define the EIA’s scope and data collection protocols. This impairs early-stage oversight and precludes meaningful public or expert input before key decisions are made.

6. Weak Standards for Data

Contractors are given minimal guidance on how to address data gaps or account for uncertainty — crucial flaws in an environment where scientific knowledge is inherently limited. The recommendations call for “robust” methods, but offer no definitions or enforceable metrics.

7 & 8. Absent Expert Review & Vague Stakeholder Engagement

There is no mandatory independent peer review of Environmental Impact Statements (EIS), and no binding requirements or standards for stakeholder consultation. As a result, contractors may conduct minimal or even no engagement and still comply with ISA rules.

9 & 10. Opaque and Non-Accountable Decision-Making

The Legal and Technical Commission (LTC), ISA’s advisory body, reviews EISs for “completeness, accuracy, and statistical reliability,” but does not assess environmental harm or make a final regulatory decision. The ISA Council is merely informed post-facto. This procedural void leaves the EIA process without a clear decision point or authority to reject a flawed proposal.

11 & 12. Inadequate Publication, Appeal, and Monitoring

There is no requirement for publishing rationale behind decisions, nor any administrative or judicial appeal process. Monitoring duties are vaguely assigned, with no standards for how data is used or disclosed. Moreover, the ISA lacks an inspectorate or enforcement arm to oversee compliance in the field.

For stakeholders this report signals that the ISA’s current exploration-phase EIA framework is procedurally deficient. These weaknesses not only jeopardize the environmental integrity of the deep ocean but also undermine the legitimacy of future exploitation licenses.

In short, the EIA regime, as it stands, cannot guarantee that mining activities will be conducted without causing irreversible harm to fragile marine ecosystems.

Moreover, because ISA standards are expected to serve as global benchmarks under UNCLOS Articles 208 and 209, regulatory weakness at the international level could cascade into poorly governed national regimes for deep-sea mining.

The CODE Project’s recommendations are both sweeping and precise. They call for:

  • A binding institutional environmental policy with explicit thresholds.
  • Legally enforceable EIA rules within the Exploration Regulations.
  • Standardized procedures for screening, scoping, data quality, and peer review.
  • Mandatory stakeholder consultations, including public hearings.
  • A formal regulatory decision point by the ISA Council on each EIS.
  • Transparent publication protocols and a right of appeal.
  • An independent monitoring and enforcement mechanism.

In terms of institutional reform, the report underscores the urgent need to bolster the ISA’s capacity — technically, procedurally, and politically.

This includes improving the qualifications and independence of LTC members, ensuring transparent Council oversight, and embedding public participation into the heart of decision-making.

With debate intensifying around the transition from exploration to exploitation, and with the ISA under scrutiny from environmentalists and states alike, the report lands at a critical juncture.

If deep-sea mining is to proceed in any legitimate form, the process must be built on robust, credible, and transparent environmental governance.

The authors conclude with a direct recommendation to the ISA Council: empower the LTC to draft a package of amendments and instruments that would render the EIA regime truly “fit for purpose.”

It’s a challenge to elevate international ocean governance to meet the stakes of the Anthropocene.