DSCC Interventions – 3.11.22

Date: 3 November 2022

Transfer of rights & obligations under a contract

Thank you Mr President and good morning delegates. We are speaking on behalf of the DSCC and Oceans North. 

The procedure and criteria for consideration of a request for the transfer of rights and obligations under a contract for exploration and supporting documents lack a discussion, let alone formulation, of a key issue of a transfer is effective control, as Costa Rica outlined.

One reason we are concerned about this as this would allow entities which have not been examined for their technical and financial ability in the specific context to be in control of a contract – thus rendering the examination at the application stage largely irrelevant.

Transfer of rights is not a theoretical but a current practical issue. In 2020, DeepGreen announced its acquisition of Tonga Offshore Mining Ltd (TOML). In November of that year, DSCC wrote to the Secretary General with some specific questions, including: whether the basis for the apparent decision that the new ownership structure did not amount to changes in the nationality of or control over the contractor, whether the new examination by the Commission of the contractor’s current technical and financial capacity will be be undertaken, and how the Authority would develop guidelines and/or procedures to apply a test of effective control. We did not receive answers to these questions.

These questions are even more pressing now, since the ownership and control of TOML has been changed yet again, this time to be owned ultimately by the NASDAQ listed TMC with a seat in British Columbia, Canada.  

The same questions apply to NORI, which may be seeking an exploitation contract within a year. What effective control test will be applied? The time is far past to keep to a myth that its effective control is anywhere but in North America.

An ISA Liability Working Group paper, by Andres Sebastian Rojas and Freedom-Kai Phillips, studied the issue of effective control under the convention and concluded that the test must be an economic, not regulatory, test. We think that must be right. 

As Costa Rica said, this is being discussed in the institutional WG and we have a long way to go. We share the views of other delegations that it would be premature to adopt this document here.

Annex IV

This Annex cannot be developed properly as there is simply not enough scientific information to do so, for any of the three types of mining (being nodules, cobalt-rich crusts, and hydrothermal vents).  As we have seen with the recent NORI EIA, there is no environmental baseline available.

Also in terms of overview, as some delegations have said in other agenda items, the distinction between EIA and EIS is artificial and leads to confusion and duplication and they should be combined.

In terms of process, there is no proper structure to consider EIAs; no independent scientific evidence; no hearing; and no appeal or review of decisions or recommendations. There is no scientific committee, and place for stakeholders to submit independent scientific information and make comments on the applicant’s scientific evidence. 

Rigorous examination of scientific evidence, including by peer review as Costa Rica noted, and the participation of independent scientists and submission of independent scientific reports is crucial.  A forum for such independent science to be submitted by concerned States and submitters is  a fundamental element of a robust EIA process.

Regional Environmental Monitoring Plans (REMPs)

We’d like to begin with a general observation that, by determining how much you decide to protect, you also determine how much you are prepared to degrade or destroy.  So the question should be how much biodiversity loss, damage, or degradation to the marine environment will the REMPs and ISA regulations allow and why? In light of the obligation to ensure effective protection of the marine environment from harmful effects and to prevent damage to the flora and fauna, it should be none.  We must consider recent political commitments, for example the Rio+20 commitments and the Leaders Pledge to “halt and reverse biodiversity loss” and the UN SDG commitments in SDG Target 14.2 to ‘strengthen the resilience and take action to restore’ marine ecosystems. As we’ve heard repeatedly from scientists over the past several years, nodule mining will degrade or destroy ecosystems – and many of the impacts will be permanent and irreversible. These concerns also apply to mining polymetallic sulfides along mid ocean ridge systems. Allowing deep-sea mining would knowingly add a major stressor to open ocean and deep-sea species and ecosystems, in addition to climate change, pollution and plastics, amongst other anthropogenic impacts. And for whose benefit would such harm or “unavoidable” impacts be allowed?  Under Part XI of UNCLOS, each and every country has an obligation to act on behalf of all humankind, not only their own economic interests. Due to fundamental gaps in knowledge and scientific understanding, and risks such as species extinctions neither states nor contractors can claim that this activity would be on behalf of and for the benefit of humankind as a whole. 

Add to this our right to a clean, healthy, and sustainable environment, and the rights of the species and the ocean that we spoke of previously. With regard to the former, the work of the ISA does not exist in a vacuum, and must – like the work undertaken under all multilateral agreements consistently across the UN system – be in furtherance of this right. These are concerns we have in relation to the development of REMPs as well as the regulations under negotiation and amongst the reasons we are calling for a moratorium.

Specifically on the proposal to adopt the nMAR REMP we have two brief points: 

Firstly, Annex 5 of the proposal in (ISBA/27/C/38) highlights numerous gaps in scientific information needed for a “comprehensive understanding of the regional environmental baseline and spatial and temporal variations”. This speaks to the inability to even understand what the full range of impacts of mining may be in the region – hardly a basis for establishing a REMP.

Secondly, given that a standardized procedure for the development, review and approval of REMPs is also under discussion, adopting the nMAR is putting the cart before the horse, that is to say premature. At the very least it should wait until a standardised procedure for REMPs that ensures effective protection of the marine environment is developed. On this point we agree with the concerns in Germany’s opening intervention on the draft standardised procedure for the development of REMPs, including in relation to transparency and stakeholder consultation, as well as comments from Costa Rica, Netherlands, Canada, Chile, France, New Zealand, FSM … and others on this item. 

Finally, we would like to draw the attention of delegates to a report prepared by the International Programme on the State of the Ocean, on the important role of the deep-sea in regulating the climate, which calls for a pause to all human activities that disturb the deep seafloor and lead to biodiversity loss, including deep-sea mining. We have copies available for interested delegates.

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