In 1967, Malta's Permanent Representative at the United Nations Arvid Pardo proposed to declare the seabed beyond national jurisdiction the common heritage of humankind in a speech before the First Committee of the General Assembly.Footnote ¹ Many among his audience were convinced that mining manganese nodules in the deep sea would become a reality in the next few years. Believing that the benefits accruing from the exploitation of these riches could potentially free the world from poverty, the discussion concerning the regulation of deep-sea mining during the negotiations of the United Nations Convention on the Law of the Sea (LOSC) mainly focused on the use of the resource instead of its preservation. However, half a century later, no deep-sea mining occurs in areas beyond national jurisdiction. In addition, the regulatory emphasis has shifted considerably towards the protection of the marine environment within these five decades. It seems to be too early to answer whether this is sufficient to preserve the environment in the deep sea.

Jaeckel has investigated the answer to this question as part of her PhD research. The result is the first comprehensive analysis of the work of the International Seabed Authority (ISA), especially its involvement in the development of regulations concerning the protection of the marine environment. She rightly states that the timing of the work is relevant because ‘even if seabed mining is postponed for economic reasons or otherwise, it remains imperative that the risk assessment and risk management framework for seabed mining be developed as soon as possible.’Footnote ² Currently, the regulations for the exploitation of mineral resources of the deep seabed are being written. Her work is susceptible to informing this process as she makes useful suggestions for a better implementation of the precautionary principle.Footnote ³ The Mining Code might as well become a benchmark for domestic legislation.Footnote ⁴

The book has a clear structure and is divided into three parts. The first part sets out the relevant context. Chapter 1 introduces the problem of deep-sea mining in connection with the marine environment. This is necessary since the regulations for prospecting and exploration of the deep seabed (forming the Mining Code) concern three resources: polymetallic nodules, polymetallic sulphides and ferromanganese crusts. Due to differences in their occurrence and in the available technological means for their exploitation, the effects of mining these resources on the marine environment will be different as well.Footnote ⁵

Chaper 2 discusses the status of the precautionary principle in international law. Jaeckel's starting point is that, although the LOSC does not explicitly refer to precaution, it does so implicitly on more than one occasion: ‘The precautionary approach can be interpreted into the LOSC.’Footnote ⁶ Wiener differentiates between three different versions of the principle: ‘uncertainty does not justify inaction’, ‘uncertainty justifies action’, and a shift in the burden of proof.Footnote ⁷ Jaeckel's dissertation appears to be closest to the second version because action is indispensable but a full reversal of the burden of proof is not required.Footnote ⁸ Jaeckel chose the application and implementation of the precautionary principle as the focal point of her research on the balance between exploitation and protection of mineral resources at the seafloor. Although the precautionary principle might not be as well-implemented as in the law on straddling and highly migratory fish stocks, there is certainly general acceptance of the need for precaution in the deep sea.Footnote ⁹ In other words, ‘for the purpose of this study, the applicability of the precautionary principle is taken as beyond doubt’.Footnote ¹⁰ Jaeckel does not spend too much time on the semantic differences between precaution, a precautionary approach and the precautionary principle because, in practice, the difference does not appear to be significant. In order to describe the precautionary principle, she borrows Trouwborst's idea of a tripod.Footnote ¹¹ The three legs are the three components of the principle: a threat of environmental harm, uncertainty, and action. These elements also play a role in adaptive management. Briefly, Jaeckel likens adaptive management to scientific experiments, the outcomes of which inform decision-making.Footnote ¹² As such, adaptive management is linked to overcoming, at least partially, the uncertainties that the precautionary principle seeks to address as well. A discussion of its advantages and disadvantages is helpful as such but Jaeckel correctly concludes that adaptive management is lacking within the Authority's current regulatory framework.Footnote ¹³ Environmental provisions in the future part of the Mining Code on exploitation might change this situation for the better.

The second part of the book deals with the ISA, i.e., the international organization responsible for the governance of mineral resource use on the seabed beyond national jurisdiction. Chapter 3 provides a description of the seabed regime, its historical background, the institutional set-up of the Authority and how its organs take decisions. Chapter 4 deals with the environmental mandate of the Authority and provides the historical context of the environmental provisions of which this mandate consists. Jaeckel argues that these rules extend to areas under national jurisdiction because states are not allowed to set lower standards for their seabed activities than the international ones.Footnote ¹⁴ Chapter 5 looks specifically at the development of the Authority's environmental mandate through the Mining Code. Jaeckel identifies five categories in which the Mining Code does so: (i) development, implementation and review of environmental protection standards; (ii) identification of applicable principles; (iii) extension of the environmental obligations of states and the Authority to contractors; (iv) setting out of specific, substantive protection measures and the requirement of best environmental practices; and (v) compliance and enforcement competences.Footnote ¹⁵ Both environmental impact assessments and the broader strategic environmental assessments are relevant for the ISA's environmental mandate. Strategic environmental assessments include the larger picture of more than one mining project and include risk analysis. They are not provided for in the Authority's mandate but might very well form a procedural element of precaution.Footnote ¹⁶ As with adaptive management, strategic environmental assessments might as well be included in the future Mining Code for exploitation.

The third part of the book deals with the implementation of precaution by the ISA. This aspect is analyzed from three perspectives: a protective dimension, a procedural dimension, and an institutional dimension. Such a division makes sense. A helpful figure visualizes the implementation cycle of the precautionary principle, including these three dimensions.Footnote ¹⁷ Chapter 6 elaborates on protective measures, among them the designation of Areas of Particular Environmental Interest (APEIs). Here the author does not shy away from critique, as she claims that the effectiveness of the APEIs has been compromised in order to avoid changes to existing exploration contracts. Marine protected areas are an example of a specific, substantive protection measure and the book lists clearly the different protected areas that could be used for this purpose.Footnote ¹⁸ Inextricably linked to protective measures is the Authority's involvement in marine scientific research. Chapter 7 focuses on procedural elements of precaution and begins with an assessment of its risks and uncertainties. Contractors are also obliged to conduct baseline studies but there are no consequences when they do not. Environmental impact assessment is the procedural element that makes use of these baseline studies and Jaeckel makes helpful suggestions as to how this should be implemented through the Mining Code.Footnote ¹⁹ Transparency, another important procedural element, appears important to improve decision-making on the basis of these baseline studies and impact assessments but is not incorporated in the Authority's legal framework.Footnote ²⁰ In her view, the institution of an ombudsperson might improve transparency and public participation.Footnote ²¹ Noteworthy is that plans to establish an international ombudsperson for future generations have previously not been implemented.Footnote ²² But this should not prevent the international community from trying to establish an ombudsperson for the deep sea.

In order to improve the institutional aspects of precaution, Jaeckel proposes, in Chapter 8, the establishment of an Environmental Commission to reduce the workload of the current Legal and Technical Commission.Footnote ²³ In many regards, this is certainly a good idea because a swift consideration of applications for mining licenses would be advantageous, provided at least some members of the Legal and Technical Commission have qualifications concerning the protection of the marine environment.Footnote ²⁴ Moreover, Malta has proposed an Inspection and Conservation Commission in the past and important parts of this proposal were included in the description of the Legal and Technical Commission.Footnote ²⁵ Jaeckel also supports the creation of a mining inspectorate that would likely report to the Authority's Council.Footnote ²⁶ Although the LOSC provides the Legal and Technical Commission with inspection capabilities, Jaeckel expresses doubts as to the capacity of the Legal and Technical Commission to do so considering the Commission's current overburdening.Footnote ²⁷ That both the Council and the Commission have supervision responsibilities seems to have been an oversight in the drafting process. One could argue that also an inspectorate better reports to the Council directly.Footnote ²⁸

Overall, the work is comprehensive, up-to-date and topical. A minor disadvantage is the number of cross-references throughout the book but this is a matter of personal taste. In terms of substance, Jaeckel's work lives up to the high expectations raised by its introduction. The fact that it deals with the contextualization of the precautionary principle in the LOSC framework as well as its practical application within the work of the ISA is appealing. It makes the book useful for both academics and practitioners. Chapter 7, in particular, contains a treasure of suggestions for improvement of the ISA's management of seabed mining beyond national jurisdiction. The reader might get the feeling that many of the improvements come down to a call for an increase of both organs and personnel for the Authority. This is conceivable considering the fact that the Authority now governs mining activities on about half of the planet's surface with fewer than 40 people. Yet, structural changes will also have to be made. The question is, how much of these the international community will accept, taking into account that it was exactly the deep-sea mining regime that ignited the negotiations on the LOSC in 1967 and played a major role all the way up to its entry into force in 1994. One cannot conclude otherwise than Jaeckel when she states that the Authority ‘lacks strategic vision regarding the environmental management of seabed mining’Footnote ²⁹ but she has certainly done a remarkable job to suggest improvements of this situation. It is to be hoped that the current development of the regulations for exploitation of mineral resources on the seabed beyond national jurisdiction will incorporate at least some of these ideas.