Key statements by States – 4/8/22

Date: 4 August 2022

Belgium

  • Noted no consensus on the proposal to allow contractors observer status.
  • Stated that the delegation are all for inclusivity, “but for efficiency, it is good for member states AND observers who work with joint statements or to work together in any other way so that was the gist of my comment”
  • On the two year rule: “During part 1 and part 2 of the Council this year. Some progress has been made on the exploitation regulations but the task ahead is enormous. We should continue the work in a structured and efficient manner. The adoption of royalty mechanism threshold and standards, regional environmental plans and financing are only 2 of them.”
  • “The regulations should be based on the precautionary approach which does not allow for artificial deadlines. The likely outcome is that at the end of the 2 year period this will not be done. Legal uncertainty is something we do not need. The stakes for mankind are too high. We look forward to the November discussion on the what if scenario. As seen in the roadmap we agreed upon in December 2021.”
  • On the next assembly meeting – “It will be a bit strange that we will be holding 2 weeks of council meetings after the deadline has passed. Lots of interventions where a lot of possible legal questions have been raised. Council should meet prior to the deadline. Another two weeks might be necessary to advance even more.”

Chile 

Made the following statement on the two year rule:

  • As we have already mentioned several times including during the council meeting last week actually expresses its concern as to the activation of paragraph 15 of Section One of the agreement”
  • The request, presented by Nauru into 2020 at one of the worst times internationally of the Pandemic has pushed us to a situation that is unprecedented and there are different interpretations as to how to interpret subparagraph C of this paragraph”
  •  We consider that it’s necessary that the assembly as a supreme organ where all the states parties take part on an equal footing can consider and deliberate this topic.
  • There is no better forum than this one, to be able to express ourselves and listen to one another.
  •  And therefore it seems surprising that more than half of the member states are not present today in this room. 
  • To our mind, there are a couple of questions we need to ask ourselves. 
  • Are we really willing to allow the beginning of underwater mining without having to protect the common heritage of mankind? And under that hypotheses, could we look our children into the eye and show them that we have done everything that was possible to defend this heritage? 
  • A week ago, 161 votes four and eight against the UN approved a resolution that states that all beings have the right to a healthy environment. 
  • The contractors that wish to begin activities underwater can they assure us that with their activities we will have a healthy environment and that the submarine ecosystem must suffer severe damage? No they can’t. It’s us. 
  • We who are gathered in this room are called upon to protect the common heritage of mankind, as established by the convention.
  •  And many experts have indicated in all languages, that the scientific knowledge is still insufficient, and that we have a very limited understanding of the effects of the potential exploitation activities on the seabed, and particularly as to the role of the seabed as a carbon sink, and therefore, some of these actions could have devastating consequences on the marine ecosystems and could release untold greenhouse gases into the atmosphere pushing us further away from the objectives of the Paris Agreement. 
  • Are we willing to be accomplices to the unknown and irreparable damages that deep sea mining might cause?
  •  My delegation can only respond on behalf of Chile The answer is no. 
  • As a signatory country, Chile wishes to continue the negotiating process to reach solid rules on exploitation that are solid holistic and protect the seabed but we do not agree that these tasks be carried out by implementing an insufficient deadline or timeline. 
  • This is why Chile is respectfully calling upon this assembly to consider carefully the situation and cooperation with the organs of the authority,  take decisions based on science based on the cautionary approach and with an eye towards sustainability.
  •  As we have already indicated Chile considers it necessary that the authority continue to work towards developing the regulations but without any pressure. 
  • This is why and based on the mandate and powers conferred upon us by articles 151 53 157 161 62 of UNCLOS we suggest the idea that we establish a cautionary pause of 15 years, a period during which we cannot approve plans for exploitation. And this will allow us to continue to work in a serious and responsible way towards developing the exploitation rules that we all wish for. 
  • We need to discuss this idea amongst others which is why Chile will try to create spaces for a dialogue at the highest level during the next meeting of the General Assembly of the United Nations in September in order to continue searching for alternatives which ensure a real commitment towards conservation and the health of oceans in the long run. And we also hope to continue the dialogue in November with the members of the council. 
  • We make an appeal to all the member states to commit themselves towards the authority and to work hand in hand to bring our positions closer and find the best solution to move forward and leave the standstill and devote our energies towards crafting the best regulations that we can whether this takes 15,20 or any number of years necessary.
  • Chile also proposed to bring forward the meeting of the Assembly to the first quarter and if necessary to meet in July, stating that delegates would only need to pay for 2.5 days.

Italy 

  • Stated that “we are strongly committed to a sustainable science based use of marine natural resources, for the preservation of the ecosystems integrity and to the creation of an institutional regulatory framework for the exploitation of the mineral resources of the area using scientific knowledge, the precautionary principle and the ecosystem based approach.”
  • “Italy shapes its own mining culture based on sustainability throughout the lifespan of the mind from research to environmental restoration. We believe this should also apply to seabed mining activities. In this context deep sea mining should not commence as we stated also previously, until we prove prior to the authorization exploitation contracts, strong regulatory framework, ensure that the environmental effects associated with activities in the area do not create detriment to deep sea ecosystems.”

New Zealand 

  • New Zealand considered the discussion on 2 year rule important and thanked Chile for proposing it.
  • “We are focused on developing regulations that ensure environmental protection and need to discuss what happens next. New Zealand consider paragraph 15 of the 1994 agreement does not require the council to approve the regulation or a plan of work. It requires the council to adopt those regulations eventually. And if they are not up to the mark environmentally the council should not adopt them. We are committed to protecting our ocean.”

Costa Rica

Costa Rica made the following statement on the 2 year rule:

  • Costa Rica is concerned about the way in which due to the triggering by one delegation of the so called two year rule, there’s an effort to constrain and oblige states to, in a haphazard way come up with a legal framework, which is of the utmost importance when speaking about the exploitation regulations.
  •  Many of the provisions are still at the fledgling stage, we need to be very clear that annex one paragraph 15 is a legal recourse established in the implementation agreement. However, this is one of the many matters in which our legal framework is not clear and is liable to be interpreted in two ways. Firstly, the rule indicates in a) that the council may undertake such an elaboration of rules, regulations and procedures needed for the development of activities in the area in two scenarios. 
  1. Anytime the council deems that all or any of such rules, regulations and procedures are required for the conduct of activities in the area
  2.  Or a request of a state, whose national intends to apply for an approval of a plan of work?
  • Those are the two alternate options. So in this situation, the council had already used alternate option one we had already undertaken the drafting of the regulation for exploitation since July 2019. This gives rise to our first debt. If the article speaks about alternative options, then is it legally viable to resort to the second option when the council has already started the elaboration of regulations in 2019, using the first alternative.
  •  Now to turn to our second doubt, and that is the validity of resorting to the two year rule in the midst of a pandemic, when it was practically impossible to advance in our deliberations much less conclude deliberations. 
  • My deviation would question that validity firstly, because in triggering the two year rule, we did so using none of the rationale for which this was included in the text. 
  • If we read the relevant text, it’s noted that this article is included for it to cover two situations. 
  • Firstly, a state is ready to start exploitation and negotiations of the regulations have not yet begun. That was not the case. 
  • Second scenario is a state is ready to exploit and in the context of the negotiations a stalemate has been reached. Neither does that apply. 
  • We are wondering about the legal validity also because although UNCLOS doesn’t speak to what happens in cases of force majeure, there is a principle that all lawyers learn at the outset of learning of studying the law. 
  • That is ‘nobody is obliged to do the impossible.’ As such, can timeline be triggered when there is force majeure that impedes its fulfilment? My delegation believes not.
  • There are many other matters on which we have very little legal certainty. For example, paragraph C of the article states that if the two year rule elapses and the council has not finished developing the rules and there is a pending plan of action for exploitation, the council may approve that plan of work on a provisional basis.
  • Therefore, what happens if the two years elapsed and that plan of work has not been submitted? In this case, there would not be a pending request. Does that mean that the timeframe elapses and must be reactivated or triggered again, if there is a pending request. What does it mean to provisionally adopt or approve it? In the provisional law of treaties, it speaks of temporality… therefore, could, the council decide to approve it in a short timeframe, while work on the regulations goes on. What type of rights does provisional granting or approval give it? What steps must be taken by contractors to fulfil their obligations vis a vis  the definitive regulations once they have been adopted from approved if the approved initial approval was provisional?
  • There are many more doubts than areas of clarity and this is really open to misinterpretation. Perhaps it might be worth addressing these questions to the body that implements our legal framework. Namely ITLOS In addition, as previously stated, Costa Rica believes that legally speaking, there is no obligation to conclude the negotiations in two years. Firstly, because this very article says that the timeframe can lapse without regulations having been elaborated.
  • Also, because there are principles at play here that we as humanity must apply the precautionary approach. 
  • There are principles at play here namely that when there is nature should be given the benefit of that doubt. And here we are referring to article 145 of the Convention, which imposes on us an obligation to effectively protect the marine environment from the harm that may derive from activities in the area. 
  • Exploration has occurred in less than 1% of the deep seabed
  • We know hardly anything about the marvellous species that live there. And if we don’t know anything about them, how can we protect them? Without the necessary information for establishing baselines without having the knowledge on the effects that mining will have on species but also on the carbon that is captured at the seabed that could be released into the environment, it is impossible to develop rules, regulations and procedures which will allow the LTC to assess plans of work in fulfilment of their obligations under the convention. 
  • Therefore, Costa Rica believes that there is a need to implement a precautionary pause we should use the last eight years that remain of the UN Decade of ocean science to promote and finance marine scientific research that will allow us to gain knowledge with regard to what is at the deep seabed before we take actions that will cause irreversible harm. 
  • This is an immense responsibility and is on all of our shoulders. As a result ,we cannot achieve all of this in one year, two year or five years. We need time to do it properly. And as the proverb says, better to do things properly done with haste. 

On bringing forward the Assembly meeting:

  • “In line with what was said by Chile. When we were speaking about the 2-year rule which has to be complied with by next summer. It’s an important issue to be discussed, if it cannot be discussed now. If the next assembly session is in July, it will be quite late. Therefore, it’s vital for us that we have an opportunity to discuss this as an Assembly not just as a council before July. whether in the form of an extraordinary season in April or a regular session in July or move the session in april and then convene an extraordinary session in July. Either is fine with us.”
  • “Costa Rica is gravely concerned that we are simply told that it is complicated to respond to a request by a state party. We are the authority. We should not simply be told that things are not complicated. In December 2021 – a meeting was arranged in 2 months with venue and interpreter.” 
  • “We are a little surprised that we are simply told that things are complicated. It was more complicated in July. We have not had the chance to discuss a very important issue. Very complicated to prepare a report in 8 months. There should be reports that we can present in July and have a special assembly to present. And not just have the argument that it is complicated because we know it is very important.”
  • On cutting off observers: “Cutting off abruptly the observers is not ideal. It’s not like we have reached 6 pm on Friday and we have to finish. I would like to apologise to the observers because I want to hear what they have to say.”

Cuba

  • Thanked the delegation of Chile for the proposal with regard to continuing to hold discussions on 2 year rule. They also stated “We need to continue the negotiations of the exploitation regulations.”

Australia

  • “Australia respects that in activating the 2-year trigger, Nauru was exercising their rights under international law. There is a considerable amount of work to do on the regulations.  Australia is committed to finalize the regulations and associated instruments by July next year. We want to meet the deadlines on 1994 agreement.”

Russia

  • “We need to think well, not procrastinate, so not be excessively slow. I would like to thank Costa Rica for a solid legal remark which was very well founded. We also agree with the message that in the case of a dispute we would need to refer the issue to the ITLOS.”

Spain

Made the following statement on the two year rule:

  • We have said that the matter of the 2 year rule is concerning for us. That is because it is a Damocles sword that is hanging over us. The time has come for us to decide something. There are legal arguments pro and anti this proposal.It would be very sad if the LTC was obliged to recommend the approval of a plan of work when provisions are not finalized. However there are other provisions for example Art 15 which allow interested states to express their interest in progressing to an exploitation phase.
  • In my view, there are too many legal uncertainties. Therefore, I support what was said by the delegations who took the floor before me. Perhaps it would not be inappropriate to resort to the ITLOS and ask for an advisory opinion, an advisory opinion that would not be made immediately it would be issued when plans have been discussed because general countries aren’t ready to present exploit exploitation plans and so it could be referred to ITLOS when necessary. So we would reiterate the need to find a consensus based solution
  • Here we are dealing with a common good. I’m a diplomat and there are many diplomats here and it’s important that the spirit that we engage in these discussions is to try and find a compromise solution and compromise between the authority, the interested state, other states represented. 
  • So perhaps as those who have spoken before me, we can agree on a pause because article 15 clearly says that the council, and speaking of paragraph C, must ‘consider’ 
  • But ‘consider’ does not mean that the council is obliged to approve. On the other hand, if provisional approval is granted, well, provisional is the key word provisional until there are adequate regulations governing a mining code. So, approval would be definitive from that point on, but provisional would not necessarily mean approval to exploit.

Nauru

  • “We are clear. We propose to  reconsider the new agenda item given the limited time Chile submitted this for the consideration of the Assembly.”

Ecuador

The delegation made the following statement:

  • “Ocean covers roughly 70% of the surface of our planet. And they host more than 80% of the forms of life that exists. 
  • The oceans without a deal to generate are roughly 50% of the oxygen necessary to our life and our fundamental to capture co2 and the heat that this generates. 
  • Moreover, we consider that the oceans are a source of food security, but they protect us against the effects of climate change and are the lung that maintains our Earth and makes it healthy and makes it possible to exercise our rights to life, health, water, nutrition, and of course, the right to a balanced, healthy environment. 
  •  I believe that right now we are not ready. We need to be aware of this and precisely uphold these principles stemming from UNCLOS. If we act with haste, we could put ourselves in irreversible situations affecting the marine environment and its ecosystems
  • We agree with article 145 of UNCLOS which we’ll see clearly establishes specified parameters for the particular for the protection of the marine environment of the area
  • This should be respected and global efforts should aim at protecting oceans appropriately by 2030 using mechanisms of regional alliances which strengthens the migratory routes, the cycles of reproduction and  the resources of the seabed
  • We therefore are grateful for the proposal of Chile, we support this initiative to postpone the timeline that has been supported by others and continue the debate.”

South Africa

  • On the two year rule and referring the matter to ITLOS: “The stakes are very high compared to the stakes in 2011. So the question now is, why are we hesitant if we are in referring this matter to ITLOS for an advisory opinion, when the stakes are high, whereas when the stakes were not as high as this high in 2011, we managed to do that and we did receive a good advisory opinion.”

Singapore

  • Stated that: “We recognize that without robust scientific knowledge, deep-sea mining poses risks of irreversible damage. In the absence of safeguards, DSM should not proceed. We note the invoking of the 2 year rule. A year before this deadline remains. If and when deep-sea mining happens there must be a robust safeguard. We are committed to developing an environmentally robust legal framework and ensure DSM is consistent with IL including rules procedures and regulations of the ISA.”

Kiribati 

  • “Regarding the proposal made by Chile…our capital needs better consultation on this proposal. We request we are not in a position to support this proposal. Could we discuss the inclusion of this item in the next meeting.”

Pakistan

  • “Having heard these arguments on the Chilean proposal – we need universally accepted regulations that ensure the protection of the marine environment and this requires time. We also know that some seek financial advantages with DSM. However we need time to achieve meaningful regulations.”

Argentina

  • “The position of our country is of commitment. After 2 years of suspension of negotiation for the exploitation of resources in the area we consider we should not postpone for an indefinite time. 
  • We should respect however the time needed for a good framework. It is also important to work for a regime that gives us legal certainty and guarantees.
  • Considering the level of importance and specifically there are technical environmental and financial challenges that should be considered taking into account DSM needs to take into account best practices and Ca respect for CHM. We should also figure out royalty systems. 
  • We understand there is legal uncertainty regarding the 2 year clause and its consequences. We need more time for studying possible scenarios in case we do not succeed in adopting regulations in 2 years.”

UK

  • Suggested deciding whether to bring forward the next Assembly meeting in the November Council session.
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