Take a look at key statements from ISA Member States below:
The International Seabed Authority (ISA) Assembly meeting concludes today, ending three weeks of intense deep-sea mining negotiations in which no mining code was agreed or adopted in a fresh blow to prospective deep-sea mining companies. Since the beginning of the negotiations, momentum to defend the deep has continued to grow with another five countries announcing their support for a moratorium or pause on deep-sea mining. The Deep Sea Conservation Coalition (DSCC) has been present throughout the negotiations in Kingston.
On 21 July, the ISA Council Meeting ended with no deep-sea mining regulations adopted. The mining industry was banking on the ISA opening the gates to commercial-scale deep-sea mining this July, but Member States of the Council did not green light the destructive industry.
However, the legal loophole that would allow a company to apply for a contract to mine, even in the absence of regulations, remains open. The failure to close this loophole leaves one of our planet’s most critical and pristine environments vulnerable to permanent environmental destruction.
The ISA Assembly, the supreme body of the ISA that represents all 168 ISA Member States, has the power to establish a pause or moratorium on deep-sea mining. A discussion on the protection of the marine environment, including a pause or moratorium on deep-sea mining was on the agenda for the first time in the ISA’s history, but the debate was blocked by China, in a move that brought to the forefront the governance deficiencies of the body that is meant to safeguard the deep sea for the common heritage of humankind. The movement for a pause or moratorium on deep-sea mining is real and growing, and therefore needs to be formally recognised in all ISA processes. It is crucial that this matter is addressed at the ISA Assembly under its own agenda item, where all member States can have a voice.
For years the ISA has been operating in its own bubble but the resounding call to protect the deep has disrupted the business as usual approach of the ISA Secretariat, mining industry, and the handful of pro-mining States. The need to protect the ocean from the impacts of mining took center stage inside and outside of the ISA during these weeks, despite efforts to silence the debate.”
“The race to defend the deep is on. We applaud the ocean champions spearheading the efforts to safeguard our fragile deep sea and urge all States to join the commitment to defending the deep.”The DSCC’S Global Deep-Sea Mining Campaign Lead, Sofia Tsenikli
Since the meetings began, the wave of resistance to the deep-sea mining industry across a broad spectrum of society reached an unprecedented high. Over the past month, the UN High Commission on Human Rights, the global seafood sector, 37 global financial institutions, scores of parliamentarians, leading scientists, Indigenous groups and youth groups, have all called for a halt to deep-sea mining. Twenty-one forward-thinking governments, including countries such as Brazil, Costa Rica, Chile, Palau, Vanuatu, France, Germany, Switzerland, among others, have now taken positions against deep-sea mining in international waters, calling for a precautionary pause, moratorium or ban and championed discussions at the ISA over the past three weeks.
At the Council meeting, a small handful of governments and delegations, namely Norway, Mexico, UK, and Nauru, did not succeed in pushing for the mining code to be adopted as soon as possible.
“With no mining code agreed and resistance mounting, prospective deep-sea miners have had their plans foiled. As the atmosphere gets increasingly tense at the ISA, the industry’s future is starting to look shaky. Investors, industry stakeholders, battery manufacturers, and tech companies are clearly becoming increasingly concerned about the viability of future deep-sea mining projects and are joining growing calls for a pause or moratorium.”The DSCC’s Policy Officer, Emma Wilson
Issues concerning the poor governance and lack of transparency of the ISA continued to beset both the Council and Assembly meetings. Significant restrictions were placed on the media and NGO and scientist observers attending the meetings and key negotiations took place behind closed doors. Furthermore, concerns continued to grow regarding the influence of prospective mining companies on the Secretariat’s decision-making process and the Authority’s ability to act independently and in the best interests of the global community. The last three weeks saw proposals and requests for agenda items being sidelined and a stalemate that lasted all week about whether the Assembly will be permitted to discuss conservation of the marine environment.
“There urgently needs to be an institutional overhaul at the ISA that empowers states and stakeholders concerned about protecting the deep sea, opens deep-sea mining negotiations to scrutiny and shifts the focus of the ISA to open and independent deep-sea scientific investigation and research. The stalemate over whether to debate the conservation of the marine environment is a travesty. It is clear that some States simply do not want the world, represented by the 168 States in the Assembly, to debate in public the implications of deep-sea mining for the marine environment.”The DSCC’s Legal Advisor Duncan Currie
“The clear divide amongst the member countries of the ISA and between the institutional structures of the organization that have emerged over these past few weeks have made it abundantly clear that the ISA is at a crossroads. To mine or not to mine the global ocean commons, that is the question the international community of nations now faces. In the 1970s, the negotiators of the UN Convention on the Law of the Sea thought that deep-sea mining could be done without harm to the marine environment. Today however, an increasing number of nations now recognize that that is not the case and that there is a need for a moratorium and a rethink of the assumptions of the past.”Matthew Gianni, Political and Policy Adviser to the DSCC
Reported as of 12:00 PM Eastern on Friday, July 28 2023.
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“The narrative that deep seabed mining is needed to combat climate change is misleading, and simply greenwashing. The science is very clear. We must not repeat the mistakes of the past. A functioning ocean is the best buffer, best mitigation and adaptation tool we have for addressing the impacts of climate change. We need to focus our efforts towards a circular economy – addressing both the dual biodiversity and climate crises together, or we risk solving neither.”WWF’s No Deep Seabed Mining Lead and DSCC Member, Jessica Batte.
“We have concerns with the positioning by the Secretary General of the ISA of deep seabed mining as potentially sustainable, or as part of a blue economy in support of the UN Sustainable Development Goals. The removal of a finite resource that has taken millions of years to form is not sustainable – by definition. The United Nations Environment Programme Finance Initiative has concluded that financing DSM is not compatible with a sustainable blue economy, and the High-Level Panel for a Sustainable Ocean Economy has found that DSM “raises …possible conflicts with the UN Sustainable Development Goals.”The Ocean Foundation’s Legal Officer and DSM Focal Point, Bobbi-Jo Dobush.
“Over the course of the Council and Assembly meetings, we have voiced concerns over a lack of transparency and stakeholder engagement at the International Seabed Authority. The ISA is responsible for governing the seabed, for the benefit of all humankind, and ensuring the effective protection of the marine environment. This is relevant to all people, and yet the ISA closes its doors to journalists, limits civil society engagement, and is facing increasing scrutiny of its close relationship with contractors. For a potential industry targeting huge swaths of the ocean, transparency and openness is critical. All voices need to be heard at the ISA and their perspectives considered – the fate of the Common Heritage of Humankind is at stake.”Oceans North’s International Policy Advisor, Nicole Zanesco.
“We must not repeat the mistakes we have made in the past, where priceless, irreplaceable wildlife, in many cases with great potential importance for humans, has been indiscriminately wiped out for the profit of a few. More states need to add their voice to ensure the protection of the deep sea, for the benefit of all humankind.”Environmental Justice Foundation’s Stop Deep Sea Mining Campaign Lead, Martin Webeler.
This week’s stalling of any meaningful discussion on the protection of the deep-sea emphasizes once again that the ISA is not fit for purpose. It must be reformed to meet the challenges of the 21st century. We are living in a time of a triple crisis: The climate crisis, unprecedented biodiversity loss and global pollution. We cannot afford to add to these crises by destroying the deep-sea. Now more than ever nations must agree to a moratorium on deep-sea mining.Founder and Director of Women4Oceans, Farah Obaidullah.
This intervention is on behalf the DSCC, the Environmental Justice Foundation, Oceans North, Greenpeace, WWF, The Ocean Foundation, OceanCare, AIDA and Sustainable Ocean Alliance.
Our main observation on the strategic plan pertains to a matter of process. The Strategic Plan is an important document in the ISA’s functioning and deserves adequate time dedicated to its development, in order to ensure that all member States and Observers have ample opportunity to contribute. However, in this instance, consultation on the Strategic Plan and revised Strategic Plan was limited, with a tight deadline for written submissions, and overlapped with Council meetings. What’s more, the group of member States initially consulted regarding the Strategic Plan was not representative of the spectrum of opinions that are expressed at the ISA today. We note particularly that the process failed to include perspectives from member States calling for a moratorium, precautionary pause or ban. This movement is real and growing and needs to be recognised in all ISA processes. There was also no consultation of the broader range of stakeholders that have expressed interest and concerns over the prospect of deep-sea mining, such as indigenous leaders and the fishing industry. We are therefore concerned that the feedback received and reported by the ISA Secretariat presents an incomplete picture of the interests, opinions and objectives of the stakeholders engaged in this issue.
In light of these concerns, and given the numerous other priorities of ISA stakeholders at this time, we suggest, like Brazil, that the Secretariat postpone the adoption of the next Strategic Plan to the Assembly meeting of 2025, and after the completion of the Article 154 review. Meanwhile, we would hope to see further opportunities for input, including more comprehensive stakeholder consultation.
Finally, the review of the previous Strategic Plan observes (and I quote) “a marked increase in the pace of the meetings of the Council, ensuring that the Council does not lose sight of the ultimate objective of adopting a sound regulatory framework” (end quote). Firstly, we observe that this accelerated trajectory is untenable for many member States and further exacerbates global inequities. We therefore suggest that the ISA returns to a more sustainable and inclusive schedule of one Council meeting and one Assembly meeting per year. Secondly, we suggest that “the ultimate objective” is not simply to “adopt a sound regulatory framework”, but to ensure that the Area is managed for the benefit of humankind as a whole and that the marine environment is protected from harm. There can be no guarantee at this point that the adoption of a regulatory framework will achieve this objective. In fact it may achieve the opposite by opening the gates to mining before we even truly understand the impacts. The strategic plan must therefore centre around the precautionary principle and should be based on the decadal timescales that independent scientists inform us will be required to obtain sufficient scientific data.
On July 25th in Kingston, Jamaica, the Governments of Palau, Costa Rica, Vanuatu, and Brazil joined forces with the Deep Sea Conservation Coalition to celebrate our living ocean and discuss the future of deep-sea mining and marine environment protection. The event was organized during the International Seabed Authority’s (ISA) Assembly week.
The ISA Assembly meeting offers a crucial opportunity for Member States to take a resolute stand against the advancement of destructive deep-sea mining. Recognizing the potential risks of this destructive industry, which could inflict irreparable harm on the global ocean and the livelihoods of those who rely on it, an increasing number of countries are aligning with scientific counsel and societal concerns by advocating for a moratorium or precautionary pause.
The event’s atmosphere encouraged the exchange of perspectives on why a moratorium or precautionary pause is vital via statements from ISA delegates and discussions throughout the evening.
- Director General Gina Guillen-Grillo, Costa Rica
- Ambassador Elza Moreira Marcelino de Castro, Brazil
- Permanent Representative Siddharth Shekhar Yadav, Vanuatu
- Ambassador Ilana Seid representing, Palau
- The Honourable Hervé Berville, France
The collective call for a pause in deep-sea mining demonstrates the growing resistance to the emerging industry and concern for the wellbeing of our ocean. As the ISA enters a pivotal phase in its history, this united front shows a commitment to safeguarding the health of our planet for future generations. By heeding the scientific advice and societal concerns, these governments, along with others supporting a moratorium, ban or precautionary pause on deep-sea mining, are helping to pave the way for a more secure and thriving marine environment.
Watch some highlights from the speeches below:
Item 8. a. Annual Report of the Secretary General (ISBA/28/A/2) I
Mr President, State delegates, fellow observers,
This intervention is on behalf of the Deep Sea Conservation Coalition, Oceans North, OceanCare, The Ocean Foundation, WWF, Environmental Justice Foundation, Greenpeace, Sustainable Ocean Alliance
We thank the Secretary-General for his report.
Two years ago member States of the ISA were delivered an ultimatum: adopt a mining code by July 2023 or be faced with the potential of unregulated mining. In either case, the demand was to start deep-sea mining. But the ultimatum has not worked out. The mining code is far from developed, and a majority of States in the Council have stated their opposition to mining in the absence of regulations.
The pressure has brought to the forefront a fundamental question: Is the international community of States prepared to unleash deep-sea mining, one of the largest and most damaging extractive operations in ocean history, in the middle of the triple planetary crisis of climate change, pollution and biodiversity loss, in contradiction to their environmental obligations and commitments?
There is no social licence for deep sea mining – scientists, global financial institutions & corporations, the fishing industry, Indigenous groups, and concerned citizens across the world are saying no to deep-sea mining. Already over 20 governments are calling for a moratorium or precautionary pause; and others, like Brazil, for a pause of at least 10 years. This requires the consideration of the full ISA membership, here at the Assembly. It is an issue of transparency, equity, sustainability, and environmental justice.
We are concerned by attempts to fast-track the mining code.
How can a mining code, developed in a rush and in a state of limited scientific knowledge, ensure the effective protection of the marine environment? In his remarks to the Opening of CBD COP15- leading to the Kunming Montreal Global Biodiversity Framework- the United Nations Secretary General, said that “ecosystems have become playthings of profit”, and that “human activities are laying waste to once-thriving oceans”. Scientists warn that the environmental impacts of deep-sea mining, including loss of biodiversity, would be large-scale, severe, and irreversible on human timescales.
And importantly, how can mining under these conditions possibly serve humankind as a whole? How can we not embrace the call of the UN High Commissioner for Human Rights: that mining should not go ahead before adequate safeguards exist to ensure such activities can be carried out in a way that respects, protects, and fulfils human rights, including the right of future generations to live in a healthy environment. What benefit can be greater than that?
Instead of a roadmap for a mining code we suggest that there should be a roadmap to build alignment around the conditions and duration of a moratorium or pause. Such a pause should account for the need to build equity and capacity, and empower the sharing of long term benefits from the deep sea rather than short term gains from damaging mineral exploitation. To uphold the ISA’s mandate to effectively protect the marine environment from harm, and to serve humankind as a whole today and in the future, the responsible thing to do is to push the brakes on deep-sea mining, before it is too late. We urge all States to enable/ensure an open and fruitful discussion at this Assembly meeting.
For immediate release – 24.7.23
The International Seabed Authority (ISA) is facing mounting pressure as governments, scientists, industry experts, environmental organizations and concerned citizens rally to halt deep-sea mining, while a handful of States and mining companies seek to forge ahead. The ISA Council meeting closed on Friday and the ISA Assembly meeting begins today, closing on 28 July. The Deep Sea Conservation Coalition (DSCC) has been present throughout negotiations in Kingston.
After two weeks of intense negotiations, the ISA Council meeting ended with no deep-sea mining code (the term for the mining regulations) adopted. The mining industry was banking on the ISA opening the gates to commercial-scale deep-sea mining this July, but Member States of the Council did not give the green light. However, the legal loophole that would allow a company to apply for a provisional licence to mine even in the absence of a mining code remains open, leaving the world’s most pristine environment still at risk.
The focus now turns to the ISA Assembly, the supreme organ of the ISA, where States are set to formally discuss, for the first time in ISA history, the growing call for a ‘pause’ on deep-sea mining. The Assembly has the power to close the legal loophole that would allow the industry to begin strip-mining vast areas of the deep ocean by establishing a moratorium on the extractive activity. An open debate on deep-sea mining at the Assembly would allow all 168 ISA Member States, not just the 36 Members of the ISA Council, to express their views on this critical issue and formulate a general policy for the protection of the marine environment.
“The growing opposition to deep-sea mining from a broad spectrum of society clearly demonstrates that there is no social license for deep-sea mining to begin. We need all governments in the room at the ISA Assembly to make a moratorium a reality and safeguard the health of our ocean. Stopping the industry in its tracks is the only responsible way forward.”DSCC’S Global Deep-Sea Mining Campaign Lead, Sofia Tsenikli
The Assembly meeting comes immediately after a Council meeting where a handful of governments and delegations, namely Norway, Mexico, UK, China and Nauru, continued to push for the mining code to be adopted as soon as possible. However, as the DSCC warned, if the mining code that States are negotiating is eventually adopted, the largest mining operation in human history could become a reality with no way back.
“Strip-mining the most fragile, undisturbed and critical habitats on our planet would inevitably cause permanent large-scale damage. With or without regulations, the end result would be the same: extinction of species; permanent habitat loss; impacts on carbon sequestration and fisheries and cultural heritage undermined.”DSCC Policy Officer, Emma Wilson
A growing number of governments, including Brazil, France, Costa Rica, Vanuatu, Germany and Chile pushed back against attempts to fast-track the adoption of a mining code because of insurmountable gaps in scientific understanding. Just before the start of the meeting of the ISA Council, a number of governments including Canada, Brazil, Finland, and Portugal all joined the wave of opposition, calling for a precautionary pause or moratorium. 21 countries have now taken positions in favour of suspending the opening of international waters to deep-sea mining.
In addition, the UN High Commissioner on Human Rights called for a moratorium this month, warning that “The combined potential impacts from mining and other stressors on the marine environment (such as climate change, unsustainable fishing, and pollution) are catastrophic.” The global seafood sector condemned the emerging industry following the publication of a new paper warning of socioeconomic and environmental impacts and conflict between deep-sea mining and some of the world’s most profitable fisheries. The UK Labour party called for a moratorium and U.S. Congressman Ed Case introduced legislation calling for a moratorium on deep-sea mining in international waters. Prominent scientists continue to highlight the inevitable irreversible consequences deep-sea mining would have if permitted to go ahead and underscore the need for urgent action. Furthermore, 37 global financial institutions in a signed letter, representing over €3.3 trillion of combined assets, urged governments to prevent deep-sea mining to go ahead to “protect the ocean”.
Issues concerning the poor governance and lack of transparency of the ISA continued to arise during the Council meetings. New restrictions were placed by the ISA Secretariat on the participation of global media and observers present during the negotiations, even refusing to allow journalists to attend the Assembly meetings this week. The DSCC joined Greenpeace, Interamerican Association for Environmental Defense, Oceans North, Pacific Blue Line, the Pacific Network on Globalisation and The Ocean Foundation in calling on the ISA Secretary General to accredit media for the Assembly meeting and reverse the restrictions to enable freedom of expression and equal participation.
The DSCC now urges Member States of the ISA Assembly to strive for the highest level of ambition and prevent the ISA from being bound to arbitrary deadlines and legal loopholes, activated on behalf of mining companies for the sake of short term profit.
“The pressure by a few for a timeline to agree to future regulations amounts to pressure to green-light mining when so many are calling for a moratorium or precautionary pause. We urge the governments which have called for a moratorium or pause to continue to show leadership by spearheading the discussions for a deep-sea mining moratorium at the ISA Assembly meeting this week.”DSCC Legal Advisor, Duncan Currie
“The past two weeks of negotiations have clearly demonstrated that governments do not yet agree on whether mining should go forward and whether it can even be regulated to prevent damage to the marine environment. We are asking all 169 members of the ISA Assembly to collectively recognize that we cannot continue to make the mistakes of the past 300 years by opening up whole new frontiers of the planet to large-scale industrial resource extraction in spite of the clear warnings from scientists that loss of deep-sea species, biodiversity and ecosystems will inevitably occur.”DSCC Political and Policy Advisor, Matthew Gianni
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This intervention is made on behalf of WWF, Greenpeace International, Oceans North, OceanCare, The Ocean Foundation and the DSCC.
It is unacceptable for the contractor to be able to not reduce risk to the “point where the cost of further risk reduction would be grossly disproportionate to the benefits of such reduction, and taking into account the relevant Guidelines.” The environment should be effectively protected without cost being a consideration. Art 145 is not predicated on practicability or cost.
Secondly, the provision in paragraph 2 that “consideration shall be given to best practice risk levels compatible with the operations being conducted.” implies that the priority is maintaining the operations rather than reducing risk.
On paragraph 3: The applicable standard should be to protect the marine environment from harm, not serious harm: Article 145 requires “effective protection for the marine environment from harmful effects”. This seems to be well accepted so this suggestion should not be controversial.
Item 10: Fifth Meeting of the Informal Working Group on Inspection, Compliance and Enforcement.
This intervention is on behalf of Greenpeace International, WWF, Oceans North, The Ocean Foundation, OceanCare, TBA 21, Sustainable Ocean Alliance, Environmental Justice Foundation and DSCC
Thank you Mr President, and we thank the Chair for his report and vice Chair Walker for her work here.
We have four respectful requests.
Firstly, on the pressing need for LTC to hold open meetings, we note the comments by Germany and Costa Rica in this regard. We note the comments of Ms Walker and look forward to a change in procedure so that meetings are by default held in public.
Where there are commercially confidential matters to be discussed, that part of the meeting could be closed. We also note the procedure used in some RFMOs to permit observers to observe meetings including confidential information, subject to requirements to observe confidentiality.
Secondly, we would like to repeat our request made last March that the threshold scientific process be open to the public, and our long-standing request that the meetings of the LTC be open to observers, and that observers and other stakeholders be able to submit independent scientific information and advice to the process.
Transparency requires nothing less. There is also no indication how members of the different working groups will be chosen and what will be the criteria and the process. We associate ourselves with Germany’s interventions in that respect and appreciate Canada’s comments and questions on process. We associate ourselves with Norway’s comments in that regard as well.
Third, we note that there was no explanation of why there was no consultation around the revision of the EIA recommendations, and again emphasise that the BBNJ Agreement, which is now adopted, contains numerous requirements about EIAs which enjoy broad consensus support and should be implemented here.
Also, we note the reference in paragraph 42 of the LTC report to a report on the TMC/NORI trial and subsequent processes and ask that it be disclosed to the Council.
Finally, we note that this discussion we have just had, and the observations made above, underline that the LTC working methods should be a fundamental consideration in the discussions that delegations are having this week about the process to be followed if a plan of work is submitted under the 2-year rule.
An example of issues within the current process is the apparent continued practice to use the silence procedure for decisions on substantive matters – which could, it seems, even include issuing a recommendation on a pending application, or a decision made in connection with any such decision. We call on the LTC to clarify that this is not the case, and call on them to reconsider the use of the silence procedure for substantive decision-making.
It is fundamental that the Council retains its ability in practice to disapprove an application for a provisional plan of work in order to prevent harm to the marine environment.
In closing, given the extraordinary influence over decisions made by the Council in relation to exploration and any future exploitation activities, if any, Council should adopt a strong hands on approach to the increasingly important work of the LTC.
In light of the new restrictions placed by the International Seabed Authority (ISA)’s Secretariat on the participation of global media and observers present during the negotiations, the DSCC has joined Greenpeace, Interamerican Association for Environmental Defense, Oceans North, Pacific Blue Line, the Pacific Network on Globalisation and The Ocean Foundation in sending a letter to the ISA Secretary General calling for accreditation media for the Assembly meeting and revise the restrictions to enable freedom of expression and equal participation.
On Regulation 20 – Term of exploitation contracts
Thank you Mr President
This intervention is on behalf of WWF, Oceans North and Greenpeace International as well as DSCC.
60 year deep-sea mining contracts, as envisaged in paragraph 7 of this regulation, through 30 year contracts in paragraph 1 and multiple renewals in paragraph 2, would be completely unacceptable.
This amounts to saddling multiple future generations with multi-decadal damage from deep-sea mining. When UNCLOS was concluded 40 years ago, climate change and the biodiversity crisis were not known issues. We now know the threats these crises pose to our planet, and deep-sea mining threatens to exacerbate them further.
This provision alone shows how essential a moratorium or precautionary pause is.
On the Report of the Secretary-General on the implementation of the decision of the Council in 2022 relating to the reports of the Chair of the Legal and Technical Commission (ISBA/28/C/15)
Thank you Mr President and Good morning delegates. This intervention is delivered on behalf of Greenpeace International, Oceans North, the Ocean Foundation, WWF and the Deep Sea Conservation Coalition
Thank you Mr President and thanks to the Secretary-General for the report.
We note that the report states in paragraph 5 that as of 31 May 2023, the Secretary-General had not identified any instances of alleged non-compliance by contractors in relation to their operations at sea or in the conduct of their plans of work for exploration.
However, the CARMU Report on the NORI spill Doc. No: INV/2023/NRU/001/Supp.1 found in paragraph that the collector system component test Inspection report of 20 February 2023 considers that NORI’s risk management and I quote “lacked the expected robustness. Decision-making, incident management and execution were not rooted in a robust risk-based assessment, and Contractor personnel on board the Hidden Gem did not fully apply internally established risk management tools and procedures during the event“ end of quote.
The report went on to say that no accurate flow rate could be produced. No water sampling was made during the normalization phase of the surface water’s appearance and no photographs were taken during the surface plume dispersion process.
The report further found that the “Contractor should, and could, have notified ISA of the event and the action taken to control it, within a much shorter time frame. In fact, ISA was not notified until 16 days after the event. It is suggested that the Contractor could reasonably have notified ISA within 24-48 hours.”
If these were not considered findings of non-compliance, then in our view they should have been.
To turn to the late submissions of reports, mentioned in paragraphs 7 and 8 of the report, it is also difficult to understand why the contractors who reported very late are not named, in the interests of transparency, and we join Fiji in their observations on this.
Turning to paragraph 20, on the silence procedure, we believe that the LTC Chair’s report on the silence procedure did not address the key issue “The Commission noted that it would continue to use the silence procedure in combination with its remote and in person plenary meetings and will consider the flexibility of the time limit of 72 hours”. The silence procedure has been used within the ISA and other international organizations during COVID-19 to pass matters such as the budget when the relevant body cannot meet. It is not appropriate to force such a rapid decision on a substantive matter such as approval of an EIA. If the Commission is not able to meet in person, it could meet virtually, rather than simply send out an email where a non-reply within 3 days is taken to signify consent.
Finally, it seems from paragraph 22 of the report that, as has happened for the last 5 years, the requests of the LTC to hold open meetings have been ignored, and certainly have not been actioned, and we join Brazil and Belgium on their comments on this.
On DR 6
Thank you Co-facilitators and it is good to see you at the podium again.
Your presentation was very helpful. In particular, you looked at what it must mean in UNCLOS, which is of course where we must look. Because the current so-called regulatory approach cannot be right. We fully support the proposed webinar
In effect, all an applicant needs to do is to incorporate a shell company inside the sponsoring State, make the application in the name of that entity and effective control is satisfied.
An example may help. We wrote letters when TMC’s predecessor DeepGreen took over TOML from Nautilus to seek to clarify how the ISA considered the transaction satisfied the test of effective control, but no satisfactory response was received.
Last month, the ISA placed on its website a paper on effective control. The paper can be found under the publications tab on the website.
The Wolmesley discussion paper and the 2019 Andre Rojas and Freedom Kai Phillips papers reach very different conclusions, underlining the need for a considered discussion. This is a crucial issue which has been all but ignored year upon year.
We have long had concerns about the lack of discussion in the Council about effective control and what we believe is an appropriate so-called regulatory test which has been applied by the ISA.
This latest paper gives us no comfort. It does not even refer to the paper published in 2019 by the ISA by Andrés Sebastián Rojas and Freedom-Kai Phillips, where the authors analysed the UNCLOS provisions and concluded that “an interpretation of effective control that is limited only to regulatory control would miss key objectives of the LOSC, “and that “economic control analysis is also needed to fulfill the concept of “effective control” under the LOSC, thereby providing a distinct alternative to nationality”.
It is high time that there was an in-depth discussion of effective control, hopefully in a workshop context as has been suggested in the institutional working group.