A clear demonstration that the ISA is not fit for purpose – 28/3/22

Date: 29 March 2022

Today marked the beginning of the second week of the International Seabed Authority (ISA)’s 27th Council meeting to continue the rapid development of rules and regulations that, if agreed, would open the deep-sea to deep-sea mining as soon as July 2023.

Discussions were supposed to be largely dedicated to developing the standards and guidelines, which would form a key part of the rules and regulations for deep-sea mining, if the industry were to go ahead. However, the negotiations were cut short and moved quickly onto a detailed discussion of compliance and enforcement of the emerging industry with very little attention paid to the standards and guidelines. 

The ISA’s Legal and Technical Commission (LTC) charged with developing the S&Gs, faced extensive criticism from States on the lack of transparency throughout the process. Numerous States’ highlighted that their comments were ignored and deleted from draft documentation without any explanation. 

The backlash from states on the draft regulations largely focused on:

  • Numerous complaints about the process, including failing to take into account comments, failure to produce a redlined copy and the LTC having met behind closed doors in an opaque process.
  • A distinct failure to oblige contractors to carry out meaningful stakeholder participation ahead of any proposed mining. Last week, a number of states and observers, including the DSCC, flagged this as a key issue.
  • A lack of explanation on why certain comments on the standards and guidelines were ignored.
  • A need to finalize regulations before agreeing standards and guidelines.
  • More prescriptive standards, taking into account the harmful effects of proposed deep-sea mining, including in areas beyond the site directly mined.
  • The artificial separation of Environmental Impact Assessment (EIA) and Environmental Impact Statement (EIS)
  • A lack of transparency including on the experts that the LTC of the ISA work with.

After an onslaught of commentary from the floor, the ISA secretariat abruptly brought the session to an end, cutting off discussions before observers were allowed to voice their concerns and moved to a paragraph by paragraph discussion of the compliance and enforcement regulations. No explanation was provided. 

The fact that the standards and guidelines are being developed well before the regulations are finalized – being based on a two year old first draft – is a clear example of the ISA’s rush to mine the deep and push through rules and regulations that would open the deep sea to commercial exploitation as soon as possible. ISA Member States should reform the Authority so that it becomes a transparent, accountable, effective and inclusive regulatory body. Today’s abrupt close to the meeting before observers were able to raise their concerns underscores clearly why such reform is essential. 

Equally concerning is that essential stakeholder participation  is not required of contractors. In fact LTC members argued with States saying they were wrong in saying it was not compulsory – only to back down when confronted by Costa Rica with chapter and verse, in a powerful intervention citing the times the draft said contractors “should”, “may” etc. This once again testifies to the fact that the ISA is operating on an industry-driven agenda, trying to smooth the path for deep-sea miners to exploit one of the world’s last remaining wildernesses.

NOAA – 2016 Deepwater Exploration of the Marianas

Rather than operating as a miners’ club, the ISA should be committed to defending the deep with all decisions informed by the best available science and independent scientific advice from an environmental scientific committee.

DSCC continues to advocate for a moratorium on deep-sea mining and an urgent halt to this headlong drive towards development of regulations which will give the green light to mine the deep sea. 

Notable interventions

Dr Malcolm Clark gave an overview of the draft documents stating that:

  • The number of stakeholder views was very challenging (5600 comments were submitted) and that it was difficult to incorporate all comments;
  • Stakeholder participation was removed from standards but retained in the guidelines;
  • The decision had been made to separate the EIA from the EIS;
  • The LTC was aiming at a non-prescriptive approach.
  • Importantly, he said that we don’t currently have enough information to define the parameters of thresholds to understand what will be sensible and that we must focus on processes until we are in a position to develop operational thresholds. This of course is putting the cart before the horse and a powerful reason for a moratorium, rather than allowing seabed mining to go ahead anyway. 
  • Norway stated that the differentiation between EIA and EIS is artificial. They added that we needed to take a step back and go back to the drawing board, looking again at the EIS and EIA and only when these matters are resolved can we get into finer detail on the standards and guidelines. DSCC has been saying this for years and it’s reassuring that States are waking up to this. DSCC has also been pointing out that the BBNJ negotiations in New York have a major section on EIAs, and this should be taken into account by the ISA and the requirements and procedures implemented.

Costa Rica pointed out that:

  • Restoration and offsetting are not possible or scientifically relevant;
  • Impacts beyond mined sites needed to be considered;
  • Stakeholder consultation should be obligatory;
  • Mining impacts would go far beyond the mining site;
  • The need more clarity on the experts that the LTC works with;
  • They had not received any answers as to why certain suggestions were approved or not.
  • Australia thought that standards and guidelines for EIS and EIA must be separate. They added that wherever we are talking about environmental protection and stakeholder consultation, these should be included in standards and that greater clarity is needed on what comments have been taken into account.
  • Chile commented that they were concerned about the process of drafting the S&Gs- the work must be exhaustive. They added that the Council needed to go through the standards and guidelines line by line as with the regulations.
  • New Zealand asked for more prescriptive standards for harmful environmental effects. Tyey said that is why they have made a joint proposal with Costa Rica and Chile drawing on the FAO guidelines.
  • Russia said that we need to finalize the draft regulations, only then should we discuss standards and guidelines. 

Compliance and enforcement

  • Spain commented that the proposed standards and guidelines need to include the possibility not to continue activities
  • The Pew Charitable Trusts, Costa Rica and the African group all commented that access to data would need to be a key part of observers’ powers if deep-sea mining were to go ahead
  • Norway commented that an independent inspectorate would only be feasible as we get more revenue from deep-sea mining. They also stated that they wanted to see a robust inspectorate with teeth.
  • The USA stated that they were interested in the complex relationships between flag state, sponsoring state and members of the Authority
  • The DSCC stated that the structures and functions detailed in proposed regulations on compliance and enforcement are inadequate and warned that the Council will not be able to get the adequate regime in place by July 2023, let alone by 2024 when The Metals Company says they want to be engaged in seabed mining.
  • The DSCC said that with respect to environmental issues, a threat of” serious harm” to the marine environment” is too high a threshold. Instead, a risk of harm to the marine environment should suffice in this context. That would be consistent with the precautionary principle.
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