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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.

On the two year rule

Thank you Mr. President and our thanks to the co-facilitators of the Intersessional dialogue for their hard work on this difficult task. This short intervention is on behalf of the DSCC, Oceans North, The Ocean Foundation, TBA21 and WWF.  We know everyone is ready to start their weekend, so we thank you for your indulgence and we promise to keep it brief.

The ISA sits at a crossroads: a pivotal moment in the history of ocean governance. It is up to you to decide on behalf of humankind whether to open up the Area to large-scale resource extraction. There remain enormous gaps in our understanding of deep-sea species and ecosystems, alongside warnings of irreversible harm to the marine environment, including potential disruption of vital ecosystem services provided by the open ocean and deep sea, such as global climate regulation. We need to start working with nature to provide for society’s needs, rather than against it. 

We would like to recognise the ever growing momentum for a pause on deep-sea mining and we thank those States for their bold political leadership. Many movements that changed the world began with a few brave people who lit a torch in the darkness and found a new path which others followed. This is the nature of adapting our norms and our systems to respond to our changing times.

We agree with views expressed by many, that the Council must retain control of the situation by directing the LTC not to make a formal recommendation on an application for a plan of work. In this context of uncertainty, it is the role of the Council to provide guidelines and directives to the LTC, in order to clarify the procedures under the two-year rule. 

But beyond the two-year rule, we once again reiterate our call for a longer-term suspension of deep-sea mining activities in the form of a moratorium or precautionary pause. States must avoid a scenario where they are subject to continual pressure to adopt regulations and allow this high risk extractive activity to proceed in a landscape of uncertainty and risk of irreversible harm to the marine environment. Today, the ISA cannot ensure the effective protection of the marine environment from the harmful effects of deep-sea mining, which is why political and legal safeguards must be put in place to protect both our institutions and our ocean.

DR48ter:

Even if just ‘a test’, test mining has environmental impacts and should not be permitted unless and until there is enough scientific information to be able to judge that effective protection of the marine environment from harmful effects is ensured, and that it would not result in biodiversity loss. It was clear from the NORI EIA that there simply is not an adequate baseline available and the environmental impact assessment provisions are rudimentary.

In the NORI test last year, there was a breakdown of process that resulted in an unplanned spill – indicating once again the risky nature of this activity, even on a small scale.

Finally, accountability, transparency and process were lacking in the procedure undertaken by the LTC to approve the test mine.

DR 47bis: 

As we discuss the matter of Environmental Impact Assessments, it is important to take a step back and consider the following fundamental question: Do we know ‘enough’ to reliably “predict the environmental impacts of deep-sea mining”? Do we know ‘enough’? 

Many of us attended the excellent presentation by biologist Dr Muriel Rabone last night. Dr Rabone’s recent research estimates that some 90% of the species living on or near the seabed in the Clarion Clipperton Zone have yet to be named, and thousands remain undiscovered.

Research published last year by Dr Diva Amon and her team found that 88% of deep-sea mining stakeholders agreed that deep-sea scientific knowledge is currently too sparse to ensure the protection of the marine environment from the impacts of commercial mining operations.

Another recent study by the German research institute, AWI, by the German research institute, AWI, found levels of radioactivity in manganese nodules that, in some cases, exceed the safe limit defined in the German Radiation Protection Ordinance. And yet, there are no proposed requirements for radioactive controls for health and safety, nor for the study of the presence of radioactive elements and the impact of those elements on the marine environment.

These three studies add to the ever-growing body of scientific research that is providing the answer to the question we raise: No, we do not know ‘enough’ to reliably predict the impacts of deep-sea mining, and as both Dr Rabone and Dr Amon suggest: it is likely to be decades before we do. 

And, finally, to echo a question raised last night, what is ‘enough’? Well, the answer is clearly stated in this draft regulation: ‘enough’ is when the ISA can “ensure effective protection for the marine environment from harmful effects”. Today, there can be no confidence that deep-sea mining could proceed without risking harm to the marine environment, at a time when the protection of this vital carbon sink should be a top priority. 

There is a lot we don’t know, but one thing we do know is that deep sea mining must not be allowed to proceed in the current climate of risk and uncertainty, if States are truly to honour their obligations under UNCLOS and other international agreements.

Finally, a comment on the wording in Paragraph 2(c) that refers to “serious harm”, which places the threshold of harm far too high, whereas Article 145 requires the prevention of harm altogether.

DR 44 

Bula Madam Facilitator

This is being delivered on behalf of Oceans North, WWF and DSCC.

We welcome the inclusion of traditional and Indigenous knowledge in para 1(a)(iiii) but this Regulation does not include a requirement to actively identify and protect cultural values with respect to the Area. This includes specific obligations to obtain the free and informed consent of indigenous communities, prior to the approval of any plan of work.

As France, Switzerland and others have noted, the BBNJ Agreement has been adopted. We are concerned that this Regulation has no reference to ensuring the protection of biodiversity. In light of other international commitments, it is incumbent upon the ISA to ensure there is no loss of biodiversity, damage to the flora and fauna of the marine environment, or degradation of ecosystems and ecosystem services. The current text does not include the authoritative Principles and Approaches listed in the BBNJ Agreement Article 7.

On the proposed paragraph 2(g):

On climate mitigation and ecosystems and nutrient cycling, we believe that the obligation as phrased is far too weak. An EIA would need to ensure that no plan of work could be approved if it harms any of these processes and an operation would need to stop if it was in any way harming these critical processes.

In all of DR 44 there is still no reference to cumulative impacts, including for example the impacts of climate change and noise, and the need to prevent environmental damage not only in areas directly impacted but in all affected areas. All cumulative impacts must be taken into account.

Finally, we would like to conclude by emphasising that, as has been repeatedly scientifically demonstrated, the mitigation hierarchy is not applicable to  deep-sea mining due to the unique nature of the ecosystem functions of such environments that are not replicable elsewhere and due to the longevity of impacts. This is why it is imperative to uphold the obligation in article 145 paragraph (b) to prevent damage to the fauna and flora of the marine environment. 

Prevention of damage sets a threshold of “no harm” – anything less departs from the provisions of Article 145. 

Vanaka

DR 47

We agree with the comments made by Switzerland related to stakeholder consultation and believe that broader and more robust provisions for stakeholder participation in the EIA process are required. 

We also agree with the comments by Switzerland and New Zealand in regard to offsets and the mitigation hierarchy. 

In paragraph 3(c), the references to “minimize, control, mitigate or, if possible, offset and manage environmental effects” and in paragraph 3(d) “identification of measures envisaged to remediate, restore, rehabilitate (where possible) the marine environment” presupposes that harmful effects would be allowed by the ISA. As we have stated previously, the scientific literature, and most recently the European Academies of Science Advisory Council report released last month, concludes that the mitigation hierarchy is not applicable to mining activity in the deep sea. Moreover, the inclusion of these provisions would establish what we view as a dangerous loophole to allow exploitation to proceed without the ISA being in compliance with the obligations in Article 145 to ensure effective protection of the marine environment from harmful effects and prevent damage to the fauna and flora of the marine environment.

This intervention is on behalf of the DSCC, WWF, The Ocean Foundation and Greenpeace International.

When discussing financial payment systems for mining in the deep sea, we cannot ignore the issue of the economic value of the deep sea and the damage to the deep sea. Again, we have heard nothing about environmental economic matters in this discussion today. Delegates will recall that the Council requested a study on the valuation of ecosystem services and natural capital of the Area.

We would like to acknowledge the completion of the study by Dr Luke Brander and Victoria Guisado Goni, entitled the Report on the value of ecosystem services and natural capital of the Area, on 31 May. Unsurprisingly, the study shows that it is currently not feasible to conduct value transfers to estimate robust, or even indicative, global values for the Area. The authors found that the intended use of economic value estimates is to design mechanisms for internalizing external costs of mining activities, which arguably requires a high degree of certainty, and that the limited availability of studies & data implies that additional research and knowledge are needed to distill robust solutions which can be used in a policy context.

However, the authors also noted that external costs due to negative impacts on ecosystem services in the water column are potentially high, including reduced carbon sequestration by phytoplankton and impacts on marine megafauna, for which there are high existence and bequest values. We also note in this context that a number of scientific studies have shown that restoration is not a viable option.

This study adds to the ever-growing body of evidence that tells us what we already know: there is not enough data to allow for responsible, evidence-based decision-making with regards to deep-sea mining. Such a scenario gives rise to the precautionary principle, under which, if applied faithfully, the only reasonable measure to prevent environmental degradation is for deep-sea mining not to proceed.

We welcome the exercise of identifying and reporting on the gaps in understanding of deep-sea ecosystems and the impacts of mining, and encourage member States to apply this approach systematically.