CIEL | 23 February 2022
Decision by arbitral tribunal on deep sea mining impacts Mexican fisherfolk
FOR IMMEDIATE RELEASE
Washington, DC, USA / Baja California Sur, Mexico — Last week, the International Centre for Settlement of Investment Disputes’ Arbitration Tribunal announced their rationale for a decision to reject a non-disputing party submission (amicus curiae) filed by the Center for International Environmental Law (CIEL) and the Sociedad Cooperativa de Producción Pesquera Puerto Chale (the Cooperativa) in the ISDS case Odyssey Marine Exploration, Inc. v. United Mexican States (ICSID No. UNCT/20/1). The case concerns the Don Diego Project, a seabed mining project off of the coast of Mexico’s Baja California Peninsula and the amicus sought to provide first-hand experience from fisherfolk in the Gulf of Ulloa and from the perspective of international human rights and environmental law. Despite offering factual and legal information about the environmental, human rights, and socio-economic risks of the Don Diego project, the Tribunal majority denied the amicus on the grounds that neither the Cooperativa nor CIEL had significant interest in the arbitration. Nevertheless, CIEL and Cooperativa’s participation was supported by the Mexican State and by one of the arbitrators Philippe Sands.
Responding to the decision, CIEL Attorney Carla García Zendejas issued the following statement:
“The submission was an opportunity to bring forward the much-needed perspective and voices of those most affected by the Don Diego project and to hear about its implications on human rights and international environmental law. The Cooperativa brings over 60 years of experience from hundreds of fisherfolk in the region, and they are only one of the cooperatives that depend on the marine ecosystem for their livelihoods. Should underwater phosphate mining operations proceed, they will have serious impacts on marine ecosystems and the biodiversity of the region, with consequences for the health and livelihood of fishing communities. Furthermore, deep sea mining projects are highly controversial, the IUCN, marine scientists and experts have called for a halt to all deep seabed and deep sea mining projects worldwide, these new developments in international law should be considered.
At a moment when the ISDS system’s legitimacy is under question as more communities affected by foreign projects remain invisible under the current system, the tribunal’s decision demonstrates that criticism is justified. The ISDS system does not operate in a vacuum and tribunals have an obligation to recognize that disputes unfold in the broader context of international human rights and environmental law. We call on Tribunals to close the gap between investment, environmental, and human rights issues, by placing affected communities and their rights squarely within the argument.”
In response to the decision by the tribunal and the dissenting opinion of P. Sands, one of the members of the tribunal, Mr. Florencio Aguilar Liera, the president of the Board of Directors and Legal Representative of the Sociedad Cooperativa de Producción Pesquera “PUERTO CHALE,” S.C.L., issued the following statement:
“As representative of our cooperative, we appreciate the support that the Center for International Environmental Law (CIEL) has given us at all times to jointly file the amicus curiae. Likewise we are pleased with the dissenting opinion issued by the member of the tribunal Philippe Sands, with regard to the amicus submitted, since this opinion is in favor of the social sector that we represent in the central region of the Gulf of Ulloa. The opinion legitimizes our struggle surrounding the impact that this seabed mining project may have, which is lethal to the biodiversity of the marine ecosystem of the region, known for its natural riches, whale watching and especially and most importantly the impact it would have on the caretta caretta yellow turtle. Which has been protected for some years under different provisions by the Mexican government, through international interventions, demanding that all fishing carried out within the Gulf of Ulloa use artisanal fishing gear in order to achieve its conservation, contrary to what this mining project intends.
It is important to point out that what the “Don Diego” seabed mining project intends is not only to affect the marine ecosystem of the Gulf of Ulloa area, but also to damage the economy of a country, doing so in an absurd way before an international tribunal. The fishing sector is united and we will not allow damage to the marine ecosystem that has been protected for so many years, much less damage to the sovereignty of our country.”
Link to the initial release: https://www.ciel.org/news/ciel-and-fishing-cooperative-file-amicus-brief-in-odyssey-marine-exploration-v-mexico/
In his dissenting opinion Philippe Sands, stated that “the Cooperativa is in a unique position to give a first hand account and thus support or challenge the arguments of the parties. This unique perspective would have been extremely valuable, and I consider it to be deeply regrettable that the Majority has decided that it does not wish to hear from a community that is directly affected by the outcome of the proceedings. Such a decision will only serve to undermine perceptions as the legitimacy of these proceedings.”
Link to amicus: https://www.ciel.org/wp-content/uploads/2022/02/Amicus-Curiae-application-for-leave-and-submission-of-CIEL-and-the-Cooperativa-Puerto-Chale-2.pdf
Link to legal brief: https://www.ciel.org/wp-content/uploads/2022/02/Legal-Briefing-on-the-Arbitral-Tribunals-Decision-to-Deny-Third-Party-Submission-in-Odyssey-Marine-Exploration-Inc-v-The-United-Mexican-States_English.pdf