Keeping the lid on Pandora’s box – 29/3/22

Date: 29 March 2022

On the 7th day of the International Seabed Authority (ISA) meeting to rush through regulations that would allow the commercial exploitation of the deep sea to begin, negotiations continued. The morning session focused on compliance and enforcement regulations, moving to institutional matters in the afternoon.

The DSCC continued to highlight that the ISA is not fit for purpose and therefore cannot regulate any proposed mining operations in the deep ocean, which would dwarf anything humanity has seen before if it were permitted to go ahead.

During the morning’s negotiations on enforcement and compliance, the Special Representative for the Enterprise warned that ‘serious harm’ to the marine environment was too high a threshold. The DSCC has continued to reiterate throughout negotiations If the marine environment is not protected, then deep-sea mining cannot go ahead.

FSM highlighted the need for monitoring to take place in areas beyond the site directly impacted, if strip mining in the deep ocean were to be given the green light. Scientists continue to warn us that operations would create persistent underwater dust-storms or ‘sediment plumes’ four to five times the size of the area mined. Italy commented that any monitoring of proposed deep-sea mining operations should happen before, during and after, in order to keep track of the anticipated long-term impacts. 

The DSCC pointed out that the draft regulations also lack a liability regime, meaning that would-be miners would be protected from the financial or legal repercussions associated with the large-scale irreversible environmental damage caused. The proposed regulations would allow the contractor the opportunity to defend accusations of compliance but there are no provisions for Council members, observers or others to make representations. This is essential for transparency as well as natural justice. 

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The afternoon session on institutional matters was co-facilitated by Costa Rica and Chile. The scope of the working group on institutional matters includes the role and responsibilities of the various parts of the ISA, access to independent expertise, and stakeholder participation.

Numerous states cited concerns regarding the broad scope of the working group, including Cameroon on behalf of the African Group.  Belgium also said it would be irresponsible to approve a plan of work before settling institutional matters. 

Both Canada and Norway highlighted that public trust would be essential if deep-sea mining were to go ahead and highlighted and the need to avoid any perceived or real conflicts of interest. Just last week, 4000 Canadians called on the government of Canada for a moratorium on the risky deep-sea mining industry. In the UK, public opinion research recently highlighted a lack of appetite for deep-sea mining – only 8% of respondents were in favor and 73% supporting a moratorium on the risky industry. The DSCC commented that it is crucial that the public, as well as member states, are aware of the damaging nature of the nascent industry and just what is at stake. This includes the lack of scientific information about the deep sea and the huge number of outstanding issues, including liability (who would for damage) and effective control (who would control the contractors and how), which have yet to be addressed. 

We also pointed to the elephant in the room: Nauru triggering the 2 year rule. This has resulted in the ISA pushing ahead hard for the regulations to be adopted. The invocation of the 2 year rule has opened Pandora’s box and risks letting a very damaging deep-sea mining genie out of the bottle which we cannot put back. If regulations were to be adopted, there would be no going back. In the regulations as currently drafted, any number of contracts would be issued for 30 years with a 10 year almost automatic renewal. If regulations were to be approved by July next year, member States will essentially lose control of the process, due to a voting structure that favors the approval of applications for plans of work.  

We set out 8 crucial shortcomings:

  1. There is no scientific committee or environmental committee. 
  2. The LTC meets behind closed doors, does not produce verbatim or even full reports and is to all intents and purposes, a black box. 
  3. Adequate procedures would require independent scientific advice, including the ability of concerned states and other stakeholders to present independent scientific advice, independent and competent consideration and a hearings process where all this could happen in a structured and transparent way.
  4. Under the current draft, there is no general discretion to refuse applications where they would not ensure effective protection of the marine environment, taking into account the precautionary principle.
  5. There is a lack of accessible and transparent appeal and dispute resolution procedures.
  6. The voting structure is completely inappropriate for a regulator. A recommendation by the LTC for a plan of work can only be refused by a ⅔ majority of Council, plus a majority in all four Chambers. This is an all but impossible hurdle, and in practical terms means once regulations are adopted, without a moratorium, plans of work recommended by the LTC will in effect be unable to be disapproved.
  7. The ISA has a conflict of interest as a regulator, and as a recipient of the payments from contractors. It also has a conflicting mandate. It is charged with both protecting the marine environment and regulating an activity that we know will cause long term and irreversible environmental damage.
  8. There is a lack of clarity between the responsibilities of the Secretariat, Council and LTC. The facilitators gave some examples of these. Others have been seen in EIAs, where currently the Council has no role in approving whether seabed mining tests can go ahead, such as that proposed by The Metals Company.

In light of these fundamental institutional flaws, the only way forward is a moratorium.

Notable interventions

– DOSI stated that the benefits to humanity as a whole include genetic resources as well as better scientific knowledge. They added that regulations should reduce the emphasis placed on the benefits that are purely financial in nature.

– Norway supported Canada’s intervention on the need to build public trust, commenting that public trust and regulatory integrity are at the heart of what we are trying to achieve.

 – Nauru, a sponsoring state for deep-sea mining, commented that we are not here to renegotiate any conventions.

– Costa Rica and Mexico highlighted that issues affecting coastal states would need to be considered.

– Belgium commented that it would be irresponsible to move to exploitation before settling on the institutional matters, highlighting that it would be irresponsible in relation to our handling of the common heritage of humankind

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