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29 Mar 2024

DSCC, Greenpeace, Oceans North, WWF, The Ocean Foundation, AIDA, Environmental Justice Foundation, The Pew Charitable Trusts:

We want to express our thanks to the delegations who intervened in favour of inclusivity and  transparency and, crucially, on the effective protection of the marine environment over the last two weeks. We thank you Mr President, as well as our host country Jamaica, the Secretariat staff and staff of the Jamaica Conference Centre,  facilitators, interpreters, and delegates for all their work, and we look forward to seeing you all in July.

28 Mar 2024

1st intervention:

Thank you Mr President. This intervention is on behalf of Greenpeace and the Deep Sea Conservation Coalition. 

We are deeply concerned at the stance that the ISA Secretariat has taken in its communications with, and about, the OSPAR Commission, in particular in seeming to argue against the ability of OSPAR to take steps under its own mandate to protect species and habitats against harm by deep sea mining within the OSPAR maritime area, and in challenging the provisions of BBNJ and international cooperation in the development of the North Atlantic Current and Evlanov Sea-basin (NACES) marine protected area. This highlights the problems the ISA Secretariat has with regional cooperation bodies. A more cooperative attitude is needed. The ISA does not exist in isolation; if it fails to try to integrate constructively in other international processes taking place around it, it seems likely to lead to conflict, or uninformed and outdated decision-making. 

We saw the same issue with the Convention on Migratory Species of Wild Animals recently. The ISA Secretariat sent a highly contentious memorandum to the CMS Secretariat at the recent CoP14 meeting in Samarkand, Uzbekistan, in effect contesting scientific evidence on the effects of deep sea mining on migratory species. In the end the COP14 urged Parties not to engage in, or support, deep-seabed mineral exploitation activities until sufficient and robust scientific information has been obtained to ensure that deep-seabed mineral exploitation activities do not cause harmful effects to migratory species, their prey and their ecosystems.

OSPAR’s group of Jurists/-Linguists advised that OSPAR has the legal competence to work on deep sea mining issues in the OSPAR maritime area,  which includes areas both outside and within national jurisdiction. Yet the ISA Secretariat responded to the advice, saying in essence that OSPAR would not need to impose any deep sea mining measures as the ISA would be capable of doing that through the future mining code and other decisions. OSPAR Heads of Delegation (HoD) decided to stand by the J/L advice and decided that no further written communication on this issue was currently needed with the ISA.

The Secretary-General’s note repeatedly refers to the ISA’s ‘exclusive mandate in the Area’. We also heard this term used in the Council discussion last week about protest at-sea. We want to caution that accuracy is needed in identifying what is exclusive about the ISA’s mandate. What the ISA has an exclusive mandate for, is to issue contracts for activities in the Area. It does not have an exclusive mandate for controlling States’ activities nor for setting environmental protection.. It is not appropriate for the Secretary-General to seek to extend the specific mandate given by UNCLOS, least of all where the intention seems to be to prevent environmentally protective measures. If the ISA Secretariat is acting in this way with OSPAR, what is to be expected when the BBNJ agreement shall be implemented? 

We note that nothing under the Law of the Sea prevents a State from adopting more stringent national regulations to protect the marine environment. In fact Article 208 of UNCLOS provides that laws, regulations and measures shall be no less effective than international rules, standards and recommended practices and procedures. This is specifically acknowledged in the preamble to the OSPAR Convention which states that  Contracting States recognise that it may be desirable to adopt, on the regional level, more stringent measures with respect to the prevention and elimination of pollution of the marine environment or with respect to the protection of the marine environment 

Both the ISA and OSPAR have the responsibility to ensure there are no harmful effects on the marine environment – in terms of Article 145 of UNCLOS –  and Article 197 requires cooperation on a regional basis.

Under the BBNJ agreement the need for cooperation between ISA and OSPAR, including with respect to Area Based Management Tools, is clear. The ISA and member States must cooperate, including under Article 8 of the BBNJ Agreement, including promoting the objectives of the BBNJ Agreement when participating in decision-making under the ISA.

This is particularly so with respect to the NACES marine protected area which was extended to include the seabed in June 2023.

In closing, we call on the ISA, its Secretariat and Member States to work cooperatively with OSPAR and its contracting Parties to protect the marine environment, including with respect to marine protected areas.

2nd intervention:

We have a very short comment related to the development of threshold values. 

We associate ourselves with the intervention by DOSI.

This is a critical process and must be carried out with transparency, inclusivity and appropriate modalities. 

To this end it is essential that this process not be undertaken behind closed doors but that these processes and the LTC meetings be open, consistent with the request by the Assembly in 2017. We support Costa Rica’s and Germany’s comments on this and other issues, including Germany’s recommendation that more scientists be involved. We would also support the comments made by the Netherlands and Ireland with regard to the thresholds and transparency. 

We would also recall our comments last year about the inappropriateness of taking decisions using the silence procedure. It should be limited to procedural matters which cannot otherwise be decided, such as urgent procedural decisions which need to be taken where a meeting cannot be organized on time due to reasons such as a pandemic.

Mr President, we saw a manifest breach of transparency today with the 2 pm meeting closed to civil society observers. There was no justification to exclude civil society from discussions of matters relating to civil society and transparency, and even less so when contractors were allowed to remain in the room. Holding meetings which contractors can attend but from which observers are excluded – on matters of interest to both parties whether or not they are on a state badge – is the antithesis of transparency.

Thank you,

28 Mar 2024

1st intervention:

This intervention is on behalf of DSCC and Oceans North, 

We also do not have comments on the intersessional group outcome, but in terms of substance, we want to briefly stand back and look at what is being proposed in the EIA/EIS process. These observations also apply to the restructured framework.

Firstly, as we have noted in previous meetings, the BBNJ Agreement contains detailed provisions on EIA which the ISA should implement. Note that under BBNJ there is no distinction between EIA and EIS – there is just the reference to the report, in article 33 of the Agreement. There is a lot to be learned from these hard fought provisions on EIAs in Part IV of the BBNJ Agreement.

Important among this is article 32 of the BBNJ Agreement that requires notification and opportunities for participation, including through the submission of comments, to take place throughout the environmental impact assessment process, and that public notification and consultation shall be inclusive and transparent, conducted in a timely manner and be targeted and proactive when involving small island developing States. Also important is submission of EIA reports to the BBNJ Clearing-House Mechanism under Article 29. This has to take place in the ISA context as well – in practice, sponsoring States would have to submit EIS statements to the BBNJ Clearing-House Mechanism. 

Secondly, the draft is not proposing a transparent process open to stakeholders who could present independent scientific research. The LTC meets behind closed doors.

There is no opportunity for participation other than commenting on drafts (the EIA), there is no opportunity for stakeholders to present independent scientific research and there’s no legal review. So essential elements of public participation as set out in the Aarhus convention – public participation and access to justice – are incomplete or missing.

These concerns are additional to structural concerns with the ISA, including the need for a ⅔ vote and a majority in each Chamber to disapprove a contract in the event that the LTC recommends approval of a plan of work, which can even be by a simple majority vote; the manifestly inadequate  60 day period and the lack of a legal review mechanism in case errors are made.

Finally we would like to note that states have agreed, through the annual resolutions on sustainable fisheries adopted by the UN General Assembly, that in managing deep-sea fisheries in ABNJ, they should “ensure that impact assessments, including for cumulative impacts of activities covered by the assessment…are reviewed periodically and are revised thereafter whenever a substantial change in the fishery has occurred or there is relevant new information” (UNGA resolution 77/118, paragraph 213(b)). The draft regulations on EIAs should meet this standard, and require any changes to the standards, guidelines, regulations and contracts as so reviewed and revised, as well as to take account of any new information or concerns.

2nd intervention:

Thank you, Mr. Facilitator. This intervention is given on behalf of The Ocean Foundation, the Deep Sea Conservation Coalition, The Pew Charitable Trusts, and the Environmental Justice Foundation

Firstly, we support the previous interventions given by the Indigenous representatives.

The concept of intangible heritage is not a new one. Intangible expressions of culture have been part of international discussions since 1973, with related conversations around ensuring protection of human rights since the 1940s. In 2003, the UNESCO Convention on the Safeguarding of Intangible Cultural Heritage was adopted. Now with 183 state parties, this Convention protects a wide array of intangible and living heritage, parts of human history that are connected to people and communities from around the world. 

According to UNESCO, “Intangible cultural heritage does not give rise to questions of whether or not certain practices are specific to a culture. It contributes to social cohesion, encouraging a sense of identity and responsibility which helps individuals to feel part of one or different communities and to feel part of society at large” 

The intangible heritage currently protected under the Convention reflects this understanding, and has inscribed the artisanal know-how of French Baguette making, Pacific Island wayfinding and canoe making, the Chinese and Malaysian Ong Chun rituals and related practices for maintaining the sustainable connection between humans and the ocean and Jamaican Reggae among many more to be protected as intangible heritage.

The current proposals in the intersessional working group span tangible heritage, a predominant focus also seen in archeology, that includes shipwrecks and human remains. This is understandable as a result of the way that international law has been developed and the focus of Article 149 of UNCLOS on archaeological and historical “objects.” However, this begs the question of why, historically, we have prioritized tangible cultural heritage over intangible cultural heritage. Could it be as a result of the history of colonization? Could it be connected with the erasure and exclusion of Indigenous voices and traditional knowledge affecting what is deemed culturally important? The world’s understanding of what is important to protect is changing, supported by increasingly inclusive conversations, the recognition of the right of free prior and informed consent, and archeologists increasingly grappling with how to acknowledge and understand protection of intangible cultural heritage.

Protecting intangible heritage keeps cultures alive. As often refrained here in this room, we have a unique opportunity to dedicate time to these important matters. The biggest question is what will we do with this opportunity: will conversations be rushed to meet an arbitrary deadline and a predetermined outcome? Or will we take our time, do our diligence, and work to ensure that conversations here are future proof, inclusive, and brave?

TOF (Question 3)

Thank you, Mr. Facilitator. This intervention is given on behalf of The Ocean Foundation, the Deep Sea Conservation Coalition, The Pew Charitable Trusts, and the Environmental Justice Foundation

Regarding question 3, one essential element is participation. This is an incredible opportunity for future discussions to be had and a necessity to include and uplift the voices of Indigenous people and local communities, topical experts, and stakeholders. This conversation can bring new and important perspectives for inclusive and well-informed decision-making about an activity whose environmental, social and cultural impacts would stretch far beyond target mining sites alone. 

It is important that intangible cultural heritage is not just taken into account, but actively protected.

Over the last year, many Indigenous people with ties to the deep sea have come to this fora and asked for your attention, asked to be heard, and demonstrated that their ways of life, traditions, history, and rights are at risk from this potential unknown, extractive and destructive industry. This body has a chance to be inclusive, by listening to and engaging with perspectives and voices who have previously been ignored or downplayed.

Effectively protecting the intangible cultural heritage of the deep sea requires engagement with Indigenous voices. To that end, the intersessional working group on underwater cultural heritage has seen a proposal by a group of Indigenous representatives. We encourage a discussion based on this proposal. Efforts to protect the marine environment and govern the Area as the Common Heritage of Mankind would be remiss and incomplete without due conversation and engagement with intangible cultural heritage and the rights of Indigenous people and protecting and safeguarding their cultural heritage.

27 Mar 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.

26 Mar 2024

First  intervention:

DSCC made a submission to the effective Control webinar last September which webinar we welcomed. It does not seem to be still on the website. It is available on the DSCC website. We welcome this thematic discussion today on this important issue.

Effective control matters for three reasons, enforcement, liability and the integrity of the ISA

Firstly, enforcement, because a contractor can escape enforcement sanctions through inadequate capitalization – in other words, not having sufficient assets within the sponsoring State. This is both a moral hazard in encouraging contractors to minimise their exposure, and a major hindrance to effective enforcement. The ability of States to effectively enforce contracts and their own laws is central to the ISA regime and is  undermined if there is no certainty that contractors can be held responsible for breaches.  Regardless  of the sponsoring State laws and of their implementation, they may be ineffective where it really matters  if the persons against whom the sponsoring State needs to enforce them, are outside jurisdiction.

Secondly, liability,  because if contractors can escape paying compensation in the event of liability, both the sponsoring State and the environment will suffer. In the absence of an economic effective control test, a contractor incorporated as a subsidiary in a sponsoring State could escape paying for the damage by simply declaring insolvency and a judgement could remain unpaid.

Integrity of the system put into place by the Convention is important because if economic control criteria were applied by the ISA to the relationship between contractor and sponsoring State, it is probable that some of the current private sector contractors seen at the ISA would fail the test, at least partly because effective control is exercised by the parent company and the majority of their shareholders and/or their directors are not located in the sponsoring State. This issue looms large in the context of the impending application by NORI, a subsidiary of the Metals Company, which is registered in Canada. The situation of UK Seabed Resources raises the same question: it is apparently owned by a Norwegian company Loke Marine Minerals. If ‘effective control’ is exercised in Norway, should Norway not be the sponsoring State?

So that is the answer we suggest to the first question.

Second intervention:

We can be very brief in this intervention for DSCC and Oceans North. Our answer to the second question is clear yes. It is the responsibility of the Council to develop “the criteria and procedures for implementation of the sponsorship requirements […] in the rules, regulations and procedures of the Authority.” According to Article 4 paragraph 3 of Annex III of the Convention. This must necessarily include a clear definition of “effective control” in the Exploitation Regulations.

Third intervention:

We can be equally brief 

The answer to the third question is that the Council must agree on an economic test for effective control. Many delegates have made this point and we agree. Taking into account the provisions of the Convention, the test must focus on economic control and this means the reality of the economics of the relationship between the sponsoring State and contractor. 

Fourth intervention:

We would like to make several observations: 

Firstly, we would observe that the term “serious harm”, which occurs in what appears to be bracketed text in DR13.3(b), is inconsistent with Article 145.

Secondly, we are concerned about the limiting qualifier of “intense” fishing activity” in DR13 para 4.b(iii) and in 13 Alt paragraph 8(iii).  

While we appreciate that this term is used in article 147(2)(b) of the Convention, it is our firm view that any fishing activity that could potentially be impacted should be identified. For example, an impact on tuna stocks or salmon populations on the high seas could affect fishing activity in coastal areas important to local communities or indigenous peoples,  not just “intense” fishing activity in the high seas.

We would note that the 1995 UN Fish Stocks Agreement obliges States to avoid adverse impacts on artisanal and subsistence fishers, indigenous people and women fishworkers, as well as to recognise the vulnerability of developing States dependent on fisheries for meeting the nutritional requirements of their populations. [in Articles 5 & 24]

The UN Fish Stocks Agreement also requires States to assess the impacts of human activities and environmental factors on species belonging to the same ecosystem; and recognises the need to ensure the conservation of associated and dependent species, protect habitats of special concern and protect biodiversity in the marine environment. [in Articles 5 & 6]

If this DR only addressed impacts on so-called “intense” fishing activity in areas where seabed mining might take place, the ISA could seriously undermine the aforementioned provisions of the UN Fish Stocks Agreement, the implementing agreement for Articles 63.2 and 64 of the Convention, and the measures taken to implement the Agreement.  It could also subvert measures established under Articles 65-67 of the Convention for the conservation of anadromous species important to indigenous peoples and local communities in the North Pacific.

To this end, a new criterion is needed that would require consideration of whether fisheries, food security or human health would be adversely affected by the environmental impacts of deep sea mining, wherever those impacts may occur. 

Mr President, distinguished delegates, the question of protecting fisheries is of course inherently tied to the biodiversity crisis and the knock-on impacts of that crisis on carbon cycling and sequestration. As we begin to feel the effects of such phenomena ever more acutely in the ocean, the prevention of biodiversity loss and the preservation of carbon cycling and sequestration functions must be a primary consideration for decision-makers at the ISA. Draft regulation 13, para 4(vi) lists the impacts that the “activity will not cause”. We are concerned to see, however, that the protection of “biological diversity and integrity of marine species, ecosystems and processes” is relegated to para 5(e) in DR13 and para 9(d)(v) in DR13alt, under which the Commission is required only to ‘take such factors into account’. In our view, the prevention of biodiversity loss and safeguarding the integrity of marine processes, including carbon cycling and sequestration, are fundamental in our crumbling Earth system, and the activity of deep-sea mining must not be permitted if it compromises these processes. 

In this regard, there is a real risk that the ISA could also undermine the UN Framework Convention on Climate Change, the Convention on Biological Diversity, the Convention on Migratory Species, the United Nations Declaration on the Rights of Indigenous Peoples and other related treaties and agreements. The discussions here must recognize the wider efforts States are engaged in to protect the oceans, halt and reverse biodiversity loss, restore ecosystems, address climate change and provide a livable planet for future generations.

Fifth intervention:

This intervention is behalf of DSCC  and Oceans North

The use of the term  ‘may’ instead of ‘shall’ in paragraph 1 alt is crucial, as the Commission must retain discretion NOT to approve a plan of work and must apply the principles of Regulation 2. It would be completely unacceptable that the Commission in any circumstance “must” or “shall” approve a plan of work. We support the intervention of Pew Charitable Trusts in this respect. 

We note also in this respect that there is no requirement that a plan of work cannot be approved if it is inconsistent with any part of Regulation 2.

We also support Belgium’s suggestion of an addition to paragraph 2 relating to other global frameworks and agreements.

Sixth intervention:

60 days as provided in paragraphs 1 and 2 is an absurdly short timeframe for the Council to reach a decision. The regulations could and should specify a longer period, as it would be a decision by Council. The Agreement provides that Council can provide for a longer period than 60 days.

Council would need to meet to consider an application, and convening a meeting would likely take half that time. Add to that the need for consideration, and the time period would need to be expressed in years.

The default approval suggested in paragraph 2, reflecting paragraph 11 of the 1994 Agreement, is a clear reminder of why a moratorium is needed. It would be completely unacceptable that such a potentially damaging decision – remembering that contracts could be in place for many decades- be made by default, as if a football team turned up late for a game. We join Costa Rica in this respect.

Seventh intervention:

DR 18 Para 4 reads that 

4.  An Exploitation Contract shall provide for security of tenure and shall not be revised, suspended, or terminated except in accordance with Regulation 18.ter.

But regulation 18 ter is not about revision at all but about suspension and termination.

If DSM were ever to start, contracts may potentially be in place for many decades. Any contract must be able to be revised, suspended or terminated including in case of harm to the marine environment.

We support Germany’s observation about article 194 para 2, and would extend the same argument to articles 145, 192 and other provisions of the Convention and indeed other international agreements. The regulations must not attempt to cement in provisions to bind future generations and in breach of other international obligations. For example, the ISA cannot contract out of the obligation in article 192, that States have the obligation to protect and preserve the marine environment, for instance.

22 Mar 2024

Thank you Mr. President,

This intervention is on behalf of the Deep Sea Conservation Coalition, AIDA, Oceans North, and Pew Charitable Trusts.

We align with the statement made by Greenpeace International and all observers who have spoken before us.

The right to peaceful protest is a fundamental human right, and States have a duty to respect, facilitate and protect it. As many have raised, the proposal to establish a 500 meter safety zone around a vessel would be contrary to UNCLOS, as well as an unacceptable attempt to limit the right to protest. We thank the many States that have spoken today in defense to this fundamental right. 

It is not uncommon for an industry that lacks social licence to attempt to exempt itself from public scrutiny. As our Earth buckles under the strain of a triple planetary crisis, the real cause for concern is not peaceful and legitimate protests, but rather the apparent perception that some companies are entitled to mine our global commons, at any societal and environmental cost, with limited transparency or public checks and balances. This is exemplified by the LTC approval of test mining in 2022 by silence procedure, which caught many by surprise.

The press release issued by the ISA on the 28th November asks us to accept a number of mind bending contradictions as truths. It asserts, for example, that Greenpeace, a non-profit environmental organization, presented “a serious threat to the marine environment” with its protests, while the seabed mining company was acting for the benefit of humankind.

Let us not forget that this very same company intends to undertake a commercial activity that would cause permanent and irreversible damage to deep sea ecosystems and species. The same company that promised its investors in August 2023 that it would submit its mining application this year, despite the significant environmental risks and insufficient scientific information, even in the absence of regulations. 

There are numerous examples in history where ​​public actions and protests against industries that degrade nature and harm people, have successfully raised awareness and triggered positive change in our societies. 

Outside of these walls, millions of people worldwide stand behind a precautionary pause or moratorium on deep-sea mining, including a growing number of States, scientists, businesses, financial institutions, human rights leaders, fishing groups and Indigenous Peoples. There is no 500 metre exclusion zone that can make the opposition to deep-sea mining go away.

Establishing a precautionary pause or moratorium is the safest way to ensure the effective protection of the marine environment. Defusing the artificial pressure will allow time for the international community of States to make informed decisions that truly benefit us all today, and also our children and grandchildren tomorrow.

Thank you Mr. President.

21 Mar 2024

1st Intervention 

We thank Dr. Luke Brander for his reports on environmental externalities. We concur with many of the findings, unknowns, biophysical uncertainties, and major research gaps highlighted. We also concur with many of the points made by Germany in its intervention (if we don’t try to value the marine environment, we value it as zero…) as well as those made by FSM

Dr Rashid Sumaila, at the event hosted by Germany last night, used the example of costing the value of diamonds vs fish and basically stated that the value of a sustainably-managed fishery  is much higher than offshore diamond mining because it can produce value indefinitely, whereas a diamond mining operation will eventually lose value as the non-renewable resource is exhausted. 

The speakers at the event also spoke about opportunity costs as a component of the equation. We’ve heard repeated concerns expressed by scientists that deep-sea mining for nodules could cause species extinction. Could extinctions be viewed as an opportunity cost? For example, the potential benefit forever lost to present and future generations of  marine genetic resources?  Or the degradation or loss of an ecosystem to which the species contributed? If so, the opportunity cost would be incalculable or as Dr Sumaila put it, “infinite”.  What level of cost needs to be included in the royalty regime to provide fair compensation to future generations? We certainly do not know that now.

In this regard we have a question on Germany’s concept note, where it states that “It is based on considering at this stage only those environmental costs that can be practically assessed and accounted for.” We suggest that it is important also to consider environmental costs that cannot be assessed and accounted for: this is itself a basis for a moratorium.‘

In this context, the failure to implement the obligations in Article 145 to effectively protect the marine environment and to prevent damage to the flora and fauna of the marine environment may have significant economic implications for the ISA in addition to long-term or irreversible impacts and harm to the marine environment. In this respect we would argue that provisions of the 1994 Agreement should not prevent consideration of fully incorporating the cost of externalities in the royalty regime, whether or not some or most terrestrial mining industries do. We are discussing here the global commons and the common heritage of humankind. 

These negotiations are not, and should not, be happening in a bubble but are part of a wider social, political and economic discussion and debate over resource use globally. According to the International Telecommunications Union and others, over 50 million tons of electronic waste are generated each year, less than 20% of which is recycled. The fact that we’re even talking about opening up a whole new frontier of the deep ocean to large-scale industrial extraction without fully understanding what the consequences may be, while at the same time throwing hundreds of thousands or millions of tons of the same metals likely to be mined in the deep sea into garbage dumps each year is arguably obscene. As a society we can and must aspire to do better.

We are not powerless against market forces. We as a society – whether as consumers, private companies and/or, in particular, governments debating global resource use and investing in renewable energy technologies, we can, should and already are using substitute materials and metals in the construction of electric batteries for vehicles and other energy storage technologies that do not require the large-scale destruction of either terrestrial or marine ecosystems. Moreover, better product design, recycling and reuse of metals already in circulation, urban mining, and other ‘circular’ economy initiatives can vastly reduce the need for new sources of metals. Reform of terrestrial mining practices is also a far better solution to damage caused by land-based mining rather than opening up a whole new frontier of large-scale industrial resource extraction in the deep-sea, an area of the planet largely untouched by direct human activity, but which is already under stress from climate change impacts, plastics and pollution and other anthropogenic stressors.

Finally in the context of a broader societal debate on deep-sea mining, it is worth quoting Craig Venter, who pioneered the technology to map the human genome. In an article that ran in the Atlantic Magazine in January 2020 he stated that “We should be very careful about mining in the ocean…These companies should be doing rigorous microbial surveys before they do anything else. It’s a terrible idea to screw with [these microbes] before we know what they are and what they do.” In the same article, Dr Jeff Drazen from the University of Hawaii was quoted as saying about the CCZ: “It’s one of the most biodiverse areas that we’ve ever sampled on the abyssal plains”. Most of those microbes live on the very same nodules that miners are planning to extract. “When you lift them off the seafloor, you’re removing a habitat that took 10 million years to grow…We’re about to make one of the biggest transformations that humans have ever made to the surface of the planet. We’re going to strip-mine a massive habitat, and once it’s gone, it isn’t coming back.”

We say it often but again, these concerns and those related to costing the externalities and a comprehensively assessing what constitutes a benefit to humankind as a whole are additional reasons for hitting the pause button and, amongst other things, reviewing the financial and others assumptions of negotiators in the 1970s in light of current economics and what we know about the deep-sea, the state of the world’s oceans, the impacts and limits of resource use, and the commitments made by states since the 1970s to sustainable development, preventing biodiversity loss, and protecting the marine environment. 

2nd Intervention

On behalf of DSCC, Greenpeace, Ocean’s North, The Ocean Foundation, WWF

As a general comment: we concurred with a number of delegations on Monday in respect to concerns over the process of negotiation based on the consolidated text. We are concerned that negotiation of the text as it stands now will not allow for a thoughtful approach to considering proposals and an inclusive discussion. 

With respect to DR2 it must set out the fundamental principles that underpin the ISA’s deliberations and decision-making. This means including principles in this Regulation, and calling them Fundamental Principles, as was the term used in earlier drafts. The inclusion of the term ‘policies’ implies that the elements of this regulation can be weighed against each other; whereas principles, such as the precautionary principle, must be applied no matter the other factors at play. We also emphasise that the obligations of Articles 145 and 192 must be implemented – they are not weighed against economic interests.

Secondly it fails to acknowledge fundamental international principles and commitments for halting and reversing, or otherwise preventing, biodiversity loss or preventing degradation of marine ecosystems – two key elements of inter alia the 2012 Rio+20 outcome document; 2030 Sustainable Development Goal 14.2 and decisions adopted by CBD COP-15 in 2022. We are also concerned with the deletion of proposals related to the protection and preservation of the marine environment including those related to conditions under which exploitation shall not commence, as well as questions of public trust and conflicts of interest, namely the former paragraphs 3 and 6. A further principle that must be respected and implemented is the duty to safeguard and protect indigenous cultural values and to obtain the free, prior and informed consent of such communities and individuals. Obtaining a broader understanding of the role of deep-sea in regulating global planetary processes through dedicated marine scientific research should also be a fundamental principle under which the ISA operates for the benefit of humankind. 

These issues all require thoughtful consideration, debate and negotiation by all member States in relation to any future decisions on activities in the Area in relation to the obligation to act on behalf of, and for the benefit of humankind as a whole, itself a fundamental principle and obligation under which the ISA is required to operate. 

Finally, apropos our comments on international commitments, we were encouraged by the proposal by Australia regarding ‘future proofing’ to the effect that exploitation should not be permitted to impede the implementation of other international frameworks and agreements. We we would urge the proposal be given due consideration  as per the comments from Germany, Portugal, FSM, Netherlands, Denmark and others.

 

19 Mar 2024

Thank you for the floor, Mr. President of the Council, I am giving this intervention on behalf of DSCC, Oceans North, The Environmental Justice Foundation, Greenpeace, The Ocean Foundation, and WWF. We thank Jamaica again for their hospitality and extend our condolences for the sad loss of Raymond Mohammed, who we miss very much. We also welcome Brazil’s nomination for Secretary General and look forward to hearing about her new vision for the ISA. 

Since we last met in November 2023, the largest known deep sea coral reef community was discovered off the East Coast of the United States. Mere miles away, a long lost mining test site from the 1970s was rediscovered, and scientists found that even 50 years after test mining finished, there was no recovery. 

New coral reefs and seamounts were also found near the Galapagos, teeming with life, some of which is found nowhere else. 

In February, the European Parliament passed a resolution raising serious concerns with deep-sea mining and calling on countries to support a moratorium. 

In the same month, The Convention on Migratory Species adopted a Resolution urging member countries not to engage in, or support, deep-sea mining until sufficient and robust scientific information has been obtained to ensure that deep-sea mining exploitation activities do not cause harmful effects on migratory marine species, their prey, and ecosystems. 

Not only are those of us invested in the deep sea, like everyone here in this room, learning more about its rich and varied ecosystems every day, but the world at large is learning about the deep sea – and they are taking action. Over 3 million people around the world have petitioned for a moratorium – companies, civil society, Indigenous Groups, grassroots movements, and states – are asking for us to be responsible stewards of the common heritage of humankind. 

As the world watches, we are under pressure by an industry actor invested in weak regulations, and by extension, in a weak regulatory body. The International Seabed Authority is not at the whim of industry, or the two year rule. The choice between unregulated mining and an ineffective mining code is a false one. UNCLOS is clear in its dual mandate that the ISA should ensure deep sea mining benefits humankind as a whole, whilst also ensuring the effective protection of the marine environment. 

With every new report and scientific paper, it becomes clearer that neither of these mandates can be met if deep sea mining goes ahead. Recent analysis and calculations by the Environmental Justice Foundation, WWF, The Ocean Foundation, Planet Tracker, Blue Climate Initiative, and others, show that the demand for metals found in the seabed is falling, and that they are not needed to transition towards sustainable energy practices. Instead, investing in alternative battery chemistries and a circular economy would provide the metals we need without opening the Area up to exploitation. Deep sea mining is simply not worth it.

Moreover, our understanding of the deep sea and the irreversible damage that deep seabed mining would do to it grows clearer as we continue to explore and study. 

In the face of these truths, the ISA has an opportunity to choose a different path – one that would benefit humankind whilst effectively protecting the marine environment – by establishing a precautionary moratorium or pause on deep sea mining. 

This choice starts in this room – with prioritising transparency, human rights, independent science, and consultation. None of these conditions are met with the newly proposed consolidated text or meeting modalities. The consolidated text fails to provide attributions, includes new text brought from proposals without track changes, suffers the deletion of text that had experienced no prior debate or scrutiny, and fails to incorporate any verbal proposals made during last year’s meetings. Of particular concern are contractor proposals that weaken environmental provisions that previously had no opposition, and were incorporated without discussion. As Chile, and others said, this is not a consensus text. 

To use this text as a basis and to transition parts of the negotiations to informal informals would be a demonstration of opacity and a failure to adhere to international expectations of consultation and good governance. We thank Australia and Germany for their strong support of transparency.

Scientists, Indigenous Peoples, youth, and other stakeholders fly from around the world to attend these meetings, to participate in discussions over the fate of a global common. Closing segments of the meetings to stakeholder participation when there is a new text, and, as a recent study published in Marine Policy outlined, well over 30 significant outstanding issues in the text, is not progress, but an effort to quell stakeholder concern and consultation. 

A concern that is not unfounded, as the current regulations would not stand muster as a regulatory regime in many countries in this room. 

In light of these concerns, DSCC and its over 115 member organisations, are calling on member states to prioritise the longevity of the common heritage of humankind by: 

  • Publicly calling for a moratorium or precautionary pause on deep-sea mining;
  • Reject the consolidated text in its current form as the main basis for negotiations;
  • Reject the negotiation modalities of informal informals.