Mitigating Human Impacts on Marine Biodiversity Beyond National Jurisdiction: Potential Benefits of the International

Legally Binding Instrument

Professor Robin Warner

Australian National Centre for Ocean Resources and Security

University of Wollongong

Presentation Outline

• EIA Element of ILBI package

• Potential Roles of ILBI – EIA Element

• Prep Com and IGC 1 Discussions on EIA

• IGC 2 Discussions on EIA

Ocean Governance in ABNJ and EIA

• In UNGA Res 69/292 States agreed that negotiations to develop the international legally binding instrument (ILBI) should address a package of four elements. One of the key elements in the package is EIA of activities with the potential for adverse effects on marine biodiversity in ABNJ

• Many commentators have characterised ocean governance in ABNJ as fragmentary and disjunctive with no coordinated or cross sectoral system of designating and managing conservation measures such as environmental impact assessment (EIA)

• These basic gaps in ocean governance framework pose considerable challenges for implementing conservation and sustainable use of marine biodiversity on an integrated basis in ABNJ

Roles and Functions of the EIA Element

• EIA element of the ILBI has the potential to further implement key provisions in Part XII of the LOSC (Arts 192, 194(5), 197, 204-206)

• Establish best practice EIA standards and provide a default system of EIA for all activities in ABNJ not already subject to EIA

• ILBI EIA element can also provide a mechanism for the shared interests of the international community in conserving and sustainably using marine biodiversity to be represented in a transparent and inclusive manner which takes into account the interests of multiple ocean stakeholders of current and future generations

Roles and Functions of the EIA Element

• EIA element could include criteria on the permissible levels of impact from human activities on marine biodiversity in ABNJ and a decision making structure which includes some level of international scrutiny over EIAs prepared by the proponents of particular activities in ABNJ

• The notification and consultation provisions should reflect the broader scope of stakeholders with interests in ABNJ encompassing State actors as well as international, regional and non governmental organizations and representatives of marine sector industries operating in ABNJ, proximate coastal communities and traditional knowledge holders

Prep Com Discussions on EIA

• States agreed on the need to operationalise in ABNJ the obligation under Arts 204 to 206 LOSC to assess the potential effects of activities under their jurisdiction or control where they have reasonable grounds for believing that these activities may cause substantial pollution of or significant harm to the marine environment

• States discussed whether there would be regional or global oversight of EIAs for ABNJ activities, how EIA provisions under ILBI would relate to existing regional and sectoral processes and institutional requirements for the EIA process

• States also discussed whether SEA processes would be implemented in ABNJ and whether transboundary EIA processes for activities with the potential to have significant effects across areas within national jurisdiction and ABNJ would be regulated in any way by the ILBI

Areas of Convergence on EIA

ILBI should:

• Set out the obligation for states to assess the potential effects of planned activities under their jurisdiction or control in ABNJ

• Set out the relationship of ILBI EIA provisions to EIA processes under relevant legal instruments and global, regional and sectoral bodies

• Address the thresholds and criteria for undertaking EIAs related to ABNJ

• Address the procedural steps of an EIA process and decision making following the EIA including whether an activity will proceed or not and the involvement of adjacent coastal states

Areas of Convergence on EIA

ILBI should:

• Address the required content of EIA reports – description of activities, reasonable alternatives, scoping results, potential effects on marine environment including cumulative and transboundary impacts, prevention, avoidance and mitigating measures, follow up actions, monitoring and management programmes, uncertainties and gaps in knowledge and a non technical summary

• Set out the obligation to ensure that the impacts of authorised activities in ABNJ are monitored, reported and reviewed

• Address the question of information to adjacent coastal states

Issues of Divergence on EIA

• Whether the instrument should address strategic environmental assessment (SEA)

• The degree to which the EIA process should be conducted by States alone or be “internationalised”

President’s Aid to Negotiations IGC2 – EIA Element Options

• Obligation to Conduct EIAs

• Relationship to EIA Processes under relevant instruments frameworks and bodies

• Activities for which an EIA is required

• EIA Process

• Content of EIA Reports

• Monitoring , reporting and review

• Strategic Environmental Assessment

IGC 2 Progress and Areas which could benefit from further consideration

• EIA process

• Content of EIA Reports

• Monitoring Report and Review

• Strategic Environmental Assessments

• Activities for which an EIA is required

• Relationship to EIA Processes under relevant instruments, frameworks and bodies

• Obligation to conduct EIAs

EIA Process

Progress

• General movement towards the inclusion in the instrument of certain steps relating to the EIA process in a streamlined manner

• Convergence towards the inclusion of screening, scoping, and decision-making

EIA Process

Further Consideration

• To what extent, the EIA process under the instrument will be internationalized and what roles existing bodies or those potentially created by the instrument will play in the EIA process and the nature of such roles

• What other steps in the EIA process entail and whether these steps should be included in the instrument

• Possible streamlining of the text and moving of some elements of the text on EIA Process into other sections such as the content of EIA reports

• Level of detail on specific steps to be included in the text

• Whether any steps to be contained in the instrument would be mandatory in nature or indicative, and how to treat unanticipated effects

Content of EIA Reports

Progress

• Convergence of views towards the inclusion of the key or essential elements of such reports in the instrument and the development of further details regarding the required content at a later stage

• Convergence of views on some of the elements in the text to be included in EIA reports, while the inclusion of other elements would benefit from further consideration

Content of EIA Reports

Further Consideration

• Which particular combination of elements should be reflected in EIA Reports as well as how to formulate specific elements

• Whether a no text option for this section should be considered

• Whether and how social, socio-economic and/or cultural impacts should be reflected in EIA reports

• Whether the provision on the content of EIA reports in the new instrument should be mandatory, potentially constituting a minimum national or international standard, or only indicative

Monitoring Report and Review

Progress

• Convergence of views that the instrument should include text on the obligation to monitor an activity and report on its impacts

• Views were expressed in support of the various elements in the current text regarding follow-up to the monitoring process

• Some convergence that reports resulting from the monitoring should be made publicly available

Monitoring Report and Review

Further Consideration

• The level of detail and modalities of the monitoring obligation, including in particular, whether the instrument should set out only the duties of States, or also duties of proponents of an activity and/or duties of relevant global, regional and sectoral bodies.

• The modalities and frequency of any reporting obligation

• Whether the text should also contain provisions on review

• Whether or not to include provisions on compliance and, if so, their placement in this part of the instrument, as well as the modalities of any compliance process

• Whether and to what extent adjacent coastal States would be involved in the monitoring, reporting and review process

• The consequences of monitoring, reporting and review, including whether to provide for adaptive management

Strategic Environmental Assessments

Further Consideration

• The scope, content and implementation of SEAs in areas beyond national jurisdiction, and also on potential linkages with ABMTs

Activities for which an EIA is required

Further Consideration

• Thresholds for determining when an EIA would need to be conducted and further reducing the options under consideration, including by continuing to explore the possibility of refining and merging existing options

• Whether or not to develop a list of activities that require or do not require an EIA, how such a list would be updated and whether it would be included in the instrument or in an annex

• Whether and, if so, how, to take into account cumulative impacts and transboundary impacts in EIAs in the instrument and where they should be placed in the text

• Whether a specific provision for EIAs in areas identified as ecologically or biologically significant or vulnerable should be included in the instrument

Relationship to environmental impact assessment processes under relevant instruments, frameworks and bodies

Progress

• Convergence of views that the EIA process in the instrument should not undermine existing relevant legal instruments and frameworks and relevant global, regional and sectoral bodies.

Relationship to environmental impact assessment processes under relevant instruments, frameworks and bodies

Further Consideration

• Whether specific provisions on the need to respect and be mutually supportive of obligations in other relevant instruments are necessary, and if so, whether they should be included in a section on general principles and approaches

• The modalities for operationalizing the relationship between any bodies or processes established by the instrument and relevant global, regional and sectoral bodies

Obligation to conduct environmental impact assessments

Progress

• Convergence of views towards the inclusion of an obligation to conduct EIAs in the instrument

Obligation to conduct environmental impact assessments

Further Consideration

• Further development of the options in the current text, including in particular, on the operationalization of the general obligation to conduct an EIA set out in the United Nations Convention on the Law of the Sea

• Whether the definition of “jurisdiction and control” in the current text is too restrictive

Conclusions• Oral Report of EIA Facilitator within the President’s Report on IGC2

reflects slow and incremental progress towards the development of a coherent text on EIA in the new instrument and quite a number of areas which could benefit from further consideration with areas of convergence still quite generalised

• In further developing the text it will be important to draw States Parties together keeping in mind the rationale for including EIA in the package agreed in 2011 including the need for more comprehensive and less fragmented ocean governance in ABNJ and a widespread, transparent and inclusive application of EIA processes

• EIA provisions should add value to existing EIA regimes and fill any gaps in EIA coverage for activities affecting ABNJ as well as facilitating the development of further knowledge on the impact of human activities on marine biodiversity in ABNJ