Federated States of Micronesia – Key statements
Date: 10 November 2022
- Importance of paying close attention to EIA provisions of BBNJ which has clear overlap – in fact BBNJ has a whole section on other institutions + BBNJ
- Appreciate references to social and cultural element in the Annex. We generally support references in the Annexes to the role of the ocean in carbon sequestration and the broader carbon uptake cycle. We need these references
- Highlighted that the definition for intangible underwater cultural heritage, which was a suggestion from the UCH working group, was deleted and wanted to remind Indigenous people during the intersessional working group had a definition for consideration by the Council. There may be a need to consider what they mean and inserting some sort of definition.
- Have proposed text for the draft regulations, based on outcomes from the intersessional working group on Underwater cultural heritage that obligates the authority to take into account the work of UNESCO with respect to underwater cultural heritage, including a definition of such heritage.
- During the intersessional working group, we had very rich discussions on tangible and intangible underwater cultural heritage during the intersessional working group. And we benefited greatly in my view from the contributions of representatives of indigenous peoples and local communities from the Pacific during the meetings. Those representatives eventually presented a paper that reflects their views on the relevant principles applicable to intangible underwater cultural heritage. Including those reflected in relevant to UNESCO conventions, the Rio declaration on the environment and development and the recently adopted BBNJ agreement.
- I also stress that indigenous representatives have expressed a strong desire to be present when the council discusses any matters pertaining to intangible underwater cultural heritage
- On the issue of intangible underwater cultural heritage, this might benefit from continued focus work, whether in the same intersessional working group or through some other format. I will note that the current draft of the exploitation regulations takes an inconsistent approach to references to what might be considered to be intangible underwater cultural heritage, such as references to traditional knowledge, to social cultural impacts and uses and the cultural component of the term of art best environmental practices. The current draft also does not contain references to the rights of indigenous peoples and local communities, especially with respect to the use of their relevant traditional knowledge. This sort of language has become prevalent in many other relevant multilateral instruments and outcomes, including recent decisions by the UNFCCC, the CBD, as well as the recently adopted BBNJ agreement. And so in my view, it’ll be good for the authority to consider reflecting these intangible elements in the expectation regulations.
- Draft regulation 49: Support harmful effects.
- Support retaining references to marine litter and underwater noise in the definition of pollution.
- Wanted to take the floor to follow up the useful contributions of Pew and DOSI – would like to reference GHG emissions. UN tribunal is addressing this question right now – if GHG emissions qualify for marine pollution under the Convention. Will hopefully give us appropriate guidance moving forward.
- We believe GHG emissions do qualify as pollution under UNCLOS. Need to capture someway in the work of the Authority.
- Ref to “harm” vs” serious harm” in 96.4 97 bis and 99: we prefer ‘harm”. Recall discussions in past meeting about “serious harm” has limited application in convention (162 & 165) about disapproval of exploitation.
- need effort to understand differences between tangible and intangible underwater cultural heritage.
- Micronesia echoed comments by other States including Portugal and Belgium regarding the need for coherence with CBD and the future work of BBNJ and other governance frameworks and bodies that are relevant to the work of the Authority, and the need for coherence and coordination between all governance bodies.
- Need to have further discussion on the issue of underwater cultural heritage and how it should be reflected throughout the draft regulations.
- Highlighted the importance of traditional knowledge of Indigenous Peoples and local communities and cultural elements in areas beyond national jurisdiction, including the Area.
- Supported proposal from France, and stated that they were deeply grateful to indigenous reps from the Pacific who have shared their views and connections to the deep sea.
- Called for a need to reflect language in regulations and standards and guidelines that allow for respectful incorporation of values and knowledge of Indigenous peoples -they should be able to participate respectfully and meaning fully in implementation of regulations.
- In line with the call for partnership with France – FSM highlighted the important role of science.
- The Council is not mandated to approve or not a Plan of Work especially in absence of Rules, Regulations and Procedures.
- We must establish a clear way forward for what happens after July 9 especially in absence of mining code.
- Called for regulations to refer to the threat of harm, instead of serious harm
- Called for references to socio-cultural impacts
- Welcomed comments made by Germany that ISA regulations should not undermine ABMT in other international fora and the new BBNJ agreement
- In response to Nauru’s intervention that not all stakeholder comments are relevant or necessary to be addressed, FSM stated that they think that all comments presented in EIA should be made publicly available even if they are not substantive, only the substantive ones need to be addressed but all should be made public.
- Called for protection of the marine environment, including the coastline
- Stated that the Mining Code should not prevent relevant BBNJ instruments such as EIAs which apply to the Area and EEZs
- Highlighted the importance of reflecting the knowledge systems of indigenous peoples and local communities, as well as reflecting on the water cultural heritage of tangible and intangible forms and regulations.
- Called for consistency between regulations and BBNJ
- Noted that BBNJ refers to best available science with complementary reference to traditional knowledge of IPLCs and that should be included in regulations.
- Called to define key stakeholders and the issue of the legitimate rights and interests of coastal states
- Reiterated that FSM are a member of the alliance for moratorium and welcomes the growth of support for the alliance.
- Stated that DSM should not occur until:
- The precautionary principle, ecosystem and polluter pays are implemented.
- Rigorous and transparent EIAs have taken place.
- Public consultation has been incorporated into processes for DSM, ensure independent review and prior consent of indigenous people is respected.
- Recalled the German delegation, stating that, multiple phrases used, e.g. pause, moratorium, what matters is what actions are taken under that and not how they are called.
- Multiple conditions must be met before DSM can proceed. International law requires this approach, so does common sense, for the benefit of humankind and the marine environment
- Micronesia welcomed points raised about the urgency to protect the ocean & by extension all of humankind and noted that the biodiversity and climate change crises were not in mind when UNCLOS was agreed.
- Deep-sea mining cannot happen without sufficient scientific information.
- Regarding who the Authority shall consult with to develop measures to implement the regulations, the Federated States of Micronesia proposed the inclusion of “relevant adjacent coastal States” or “coastal States contiguous, or in proximity” where there is reference to coastal States, to account for the fact that these States may be affected by mining activities.
- Stated that “regulations are subject to the provisions of the convention and the agreement and other rules of international law not incompatible with the convention. So, members have already accepted that sort of formulation in the exploration regulations. So perhaps this can be considered going forward in this context.”
- Supported specific reference to coastal states who are most relevant in the context of the relevant activities in the Area, particularly those who have close proximity to the mine sites.
- FSM stated that the LTC referenced existing language on sites or objects of archeological or historical nature in exploration regulations, which the Commission might have thought were sufficient. The delegation stated such references were not sufficient when considering REMPs in general, especially considering experiences in the Northwest Pacific, where such cultural heritage and traditional knowledge are alive and vibrant and not archeological, historical, or otherwise outdated – there are proposals in draft exploitation regs to reflect these issues more broadly.
- The delegation proposed “inserting a reference to the coastline in this draft regulation, because in article 145, which talks about the prevention, reduction, and control of pollution and other hazards associated with activities in the area, it does reference the coastline in connection with the marine environment.”
- FSM supported other delegations who called for removal of “serious” before harm. They asked delegations to consider the use of “serious harm” in other parts in draft regualtions.
- Called for reference to the impacts of “light and noise” in regulations.
- FSM stated that it is crucial that “work be carried out in a careful, transparent, and responsible manner.”
- “As we have strived to do so for a while now, Micronesia continues to engage in good faith in the careful, transparent, and responsible development of the Mining Code of the ISA. We do so under two major guiding principles. First, if proposed exploitation activities in the Area are to be considered by the Authority, then this consideration must be in accordance with an internationally-agreed, complete and clear set of regulations, standards, and guidelines that ensure the robust and effective protection and preservation of the marine environment, in line with the Convention and the Part XI Agreement. Second, the consideration of proposed exploitation activities must be based on a comprehensive suite of data, knowledge, and information about the Area and the surrounding marine environment that could be impacted by such proposed exploitation activities, including the relevant traditional knowledge of Indigenous Peoples and local communities.”
- The delegation highlighted that “In our view, we are quite a long way from satisfying both principles, and we may very likely not reach that stage for a long while to come.”
- “In light of these concerns, Micronesia recently joined the Alliance of Countries for a Deep-Sea Mining Moratorium, alongside several of our fellow Pacific Island countries. Micronesia recognizes that there are different views about how a moratorium can be implemented in accordance with the Convention and the Part XI Agreement, and we acknowledge that other delegations have called for various iterations of a pause or some other type of precautionary step other than a moratorium. We are happy to discuss these matters with all interested delegations in good faith going forward, while remaining fully mindful of Micronesia’s core concerns about how much work remains in order to complete a robust Mining Code and secure a comprehensive set of data, knowledge, and information about the Area and the potential harmful effects of exploitation activities.”
- “To conclude, Micronesia’s commitment to international action through the careful, transparent, and responsible development of the Mining Code is motivated not just by my government’s deep care and concern for the marine environment of the Area, but also by our own national efforts to safeguard our own national territory and jurisdiction. Micronesia has committed to effectively managing 100 percent of our maritime territory by 2030, including protecting a minimum of 30 percent of our maritime territory and a minimum of 50 percent of our coastal marine territory by 2030. We cannot achieve these goals unless there is a Mining Code in place that, among other things, allows for rigorous and transparent impact assessments to ensure that the environmental, social, cultural, and economic risks of deep seabed mining are comprehensively understood, including how biodiversity loss and species extinction can be prevented, in line with the precautionary principle, ecosystem approach, and the polluter pays principle, among other factors.”
- “The Ocean is a unitary whole, and what happens in the international seabed Area could very well impact coastal waters and territories.”
- FSM stated that they’d prefer to use “precautionary principle rather than approach.”