DSCC Interventions – 26/3/24

Date: 27 March 2024

First intervention:

Vinaka vakalevu   Madam facilitator – it is good to see you back at the podium.

We associate ourselves with the interventions of Pew Charitable Trusts and WWF

Firstly we would like to observe that the issue of the compensation fund is intrinsically linked with three other matters to be discussed here at Council – effective control,  the valuation of ecosystems, and a liability regime. It is linked to effective control because any future deep-sea miners should not be able to escape liability through thin capitalization, which is the reason the Seabed Disputes Chamber proposed the Fund. This, Madam Facilitator, underlines why we need a precautionary pause or moratorium. And it is linked to a liability regime, which has not been addressed to date, despite an African Group submission in 2019 in document ISBA/25/C/25. We support Australia’s Costa Rica’s, Germany’s, Denmark’s and Switzerland’s comments on strict liability in that regard. But that is not enough. As the African Group observed, If liability rules are left to the discretion of individual sponsoring States, there is a risk of inconsistent treatment, “sponsor-shopping” and barriers to access to justice, as well as different approaches for example to the burden of proof. None of these liability issues have been addressed to date.

In addition, until a liability regime is agreed — the interface between liability and the fund will be unclear.

To address your first question:

We observe that as Planet Tracker has found, trying to fix the permanent damage deep sea mining would cause is so costly no one could afford it:  large-scale attempts to restore deep sea ecosystems would cost trillions of dollars: neither governments nor companies could pay for it.

Secondly, we observe that as the European Academies Science Advisory Panel found, remediation is likely to be ineffective owing to the slowness of deep-sea recolonisation of disturbed habitats, the large areas affected and the irreversibility of habitat loss 

Thirdly, we note that a narrow description of the purpose of the fund would unnecessarily limit its availability to pay for environmental damage. So, listing items such as unconsented damage or unforeseen damage would only leave the damage not compensated, and effectively pass on the cost to the environment at large and humankind as a whole. We raise this with respect to DR 55 Alt 2 paragraph 3.

We also support France on the issues of illegal damage and valuation issues.

Second intervention:

Thank you Madam Facilitator,

This intervention is on behalf of WWF, Environmental Justice Foundation, Greenpeace and Deep Sea Conservation Coalition. 

We would like to emphasize a critical aspect of your commitment under the United Nations Convention on the Law of the Sea, specifically regarding the protection of the marine environment. UNCLOS, while comprehensive in its framework, does not merely include provisions for compensation for environmental damage; rather, its primary focus is on the prevention and protection of the marine environment from such harm.

Central to this obligation is the precautionary principle enshrined within UNCLOS. This principle mandates that if there exists uncertainty regarding the impacts of an activity on the marine environment, and if adequate measures to prevent harm cannot be assured, then said activity should not proceed. This principle underscores your collective responsibility to prioritize the safeguarding of our ocean above all else.

Member States of the International Seabed Authority, it is incumbent upon you to ensure that deep seabed mining does not commence until there is sufficient scientific understanding of its potential impacts and that the world has found ways for those impacts to be prevented. You must not allow mining activities to proceed in the absence of such knowledge, as doing so would contravene your obligation as State Parties to UNCLOS to protect the marine environment.

Moreover, it’s essential to distinguish between protection and compensation. While compensation may address the aftermath of environmental harm, it cannot replace the imperative of proactive protection as mandated by UNCLOS. Your focus must remain steadfast on preventing harm rather than seeking remedies after the fact.

Furthermore, you must acknowledge the limitations of our current understanding of the deep sea. The concept of restoration, which is mentioned as a future possibility in various places throughout the regulations, is not currently feasible given the complexities of deep-sea environments. The ISA cannot reasonably base its decisions on unsubstantiated hopes that restoration may become an option someday in the distant future. Therefore, your foremost objective must be the prevention of damage rather than relying on the notion of restoration.

In conclusion, let us remember that the goal of UNCLOS is not to gauge how much damage we can inflict upon the ocean and subsequently compensate for it. Instead, it mandates you to uphold your collective duty to protect the marine environment upon which we all depend.

This is why the only way forward is a moratorium on deep seabed mining, prioritizing deep-sea environmental protection, ensuring that your actions today do not compromise the health and integrity of our ocean for generations to come.

Third intervention:

We would like to briefly raise a closely related question; how will the funds themselves be generated?

This is an important question because if the fund was to be capitalised only from revenues, it will inevitably be minimally funded at its inception and for years following. This would be at a time when it is most needed. The oil pollution funds are not a good example as there the activity was already being conducted.

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