Environmental impact assessments in areas beyond national

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STUDY
N°01/13 JANUARY 2013 | BIODIVERSITY
Environmental impact
assessments in areas
beyond national
jurisdiction
Elisabeth Druel (IDDRI)
GAPS IN THE CURRENT GLOBAL FRAMEWORK
Although a number of obligations to carry out environmental impact
assessments in areas beyond national jurisdiction exist, the current
global framework is far from being complete. It is mostly sector-based
(deep-sea fisheries, seabed mining, ocean fertilisation) or region-specific
(within the Antarctic Treaty System or to a lesser extent in a few number
of regional seas conventions), and does not take into account cumulative
impacts of human activities on the marine environment. General guidance on the subject has been adopted in 2012 by the Parties to the Convention on Biological Diversity, but is limited to technical aspects and is not
legally binding.
AN ISSUE DEBATED AT THE GLOBAL LEVEL
The United Nations General Assembly has been debating on the need for
an implementing agreement to the United Nations Convention on the Law
of the Sea on the conservation and sustainable use of marine biodiversity
in areas beyond national jurisdiction. Environmental impact assessments
are considered as being one of the potential topics for inclusion in a future
multilateral agreement.
www.iddri.org
POSSIBLE WAYS FORWARD
Institut du développement durable
et des relations internationales
27, rue Saint-Guillaume
75337 Paris cedex 07 France
The adoption of an international legally-binding instrument dealing inter
alia or solely with environmental impact assessments in areas beyond
national jurisdiction would already be a good step forward. However, its
content will prove crucial to ensure the efficiency of any environmental
impact assessment process in areas beyond national jurisdiction and to fill
regulatory and governance gaps. Minimum requirements should therefore be defined, for example: including objectives or principles against
which the outcome of any EIA will be tested, such as “zero-biodiversity
loss”; defining a screening process, with appropriate thresholds; and providing for the creation of an advisory scientific and technical body and of
a global compliance committee.
Copyright © 2013 IDDRI
As a foundation of public utility, IDDRI encourages
reproduction and communication of its copyrighted materials to the public, with proper credit
(bibliographical reference and/or corresponding
URL), for personal, corporate or public policy
research, or educational purposes. However,
IDDRI’s copyrighted materials are not for commercial use or dissemination (print or electronic).
Unless expressly stated otherwise, the findings,
interpretations, and conclusions expressed in the
materials are those of the various authors and are
not necessarily those of IDDRI’s board.
Citation: Druel, E. (2013), Environmental impact
assessments in areas beyond national jurisdiction:
identification of gaps and possible ways forward,
Studies N°01/13, IDDRI, Paris, France, 42 p.
Context of the report
In 2011, IDDRI formed a partnership agreement
with the French Marine Protected Areas Agency
concerning the governance of marine biodiversity in areas beyond national jurisdiction. In this
regard, IDDRI is focusing on the clarification of
key questions for international events relating to
the governance of marine biodiversity in areas
beyond national jurisdiction and is also conducting various research projects. This study has
been realised as part of the work programme established through this partnership agreement.
Disclaimer
The views expressed in this document are those
of the authors and do not necessarily reflect those
of individuals or organisations consulted in the
course of this study.
The author wishes to thank Raphaël Billé and
Julien Rochette (IDDRI) for their useful comments
on previous versions of this document and Pascale
Ricard for previous research conducted on the
subject. The author would also like to thank
Matthew Gianni (DSCC) and Lenaick Menot
(IFREMER) for the information provided on
sectoral EIAs in ABNJ during the second meeting
of the French informal working group on high
seas, held in Paris in October 2012.
◖◖◖
For more information about this document,
please contact the author:
Elisabeth Druel – [email protected]
ISSN 2258-7535
Environmental impact
assessments in areas
beyond national jurisdiction
Elisabeth Druel (IDDRI)
LIST OF ACRONYMS
4
EXECUTIVE SUMMARY
5
1. INTRODUCTION
9
2. THE EXISTING FRAMEWORK FOR EIAs IN ABNJ
11
2.1. A widespread practice at the
international level
2.2. Instruments addressing specifically
EIAs in ABNJ
14
3. IDENTIFICATION OF GAPS
31
4. POSSIBLE WAYS FORWARD
32
4.1. Options to establish a global legal
framework for EIAs in ABNJ
4.2. Content of the obligation
32
34
4. CONCLUSION
37
11
REFERENCES39
IDDRI IDÉES POUR LE DÉBAT 05/2011
3
LIST OF ACRONYMS
ABNJ
Areas Beyond National Jurisdiction
AT Antarctic Treaty
ATCM
Antarctic Treaty Consultative Meeting
BBNJ
Working Group Ad Hoc Open-ended Informal Working Group to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas
of national jurisdiction
CBD Convention on Biological Diversity
CCAMLR Commission for the Conservation of Antarctic Marine Living Resources
CEP Committee for Environmental Protection
COP Conference of the Parties
DSCC Deep-Sea Conservation Coalition
EBSA Ecologically or Biologically Significant Marine Area
EIA Environmental Impact Assessment
EIS Environmental Impact Statement
EU European Union
FAO United Nations Food and Agriculture Organisation
IAIA I
nternational Association for Impact Assessment
ICJ International Court of Justice
ISA International Seabed Authority
ITLOS International Tribunal on the Law of the Sea
IUCN International Union for Conservation of Nature
LC London Convention on the Prevention of Marine Pollution by Dumping
of Wastes and Other Matter
LP London Protocol to the Convention on the Prevention of Marine Pollution
by Dumping of Wastes and Other Matter
LTC Legal and Technical Commission of the International Seabed Authority
MPA Marine Protected Area
NAFO Northwest Atlantic Fisheries Organisation
NEAFC North-East Atlantic Fisheries Commission
OSPAR Convention Convention for the Protection of the Marine Environment of the North-East Atlantic
RFMA Regional Fisheries Management Arrangement
RFMO Regional Fisheries Management Organisation
SAI Significant Adverse Impact
SBSTTA Subsidiary Body on Scientific, Technical and Technological Advice
SEA Strategic Environmental Assessment
SEAFO South East Atlantic Fisheries Organisation
SPREP Convention Convention for the Protection of the Natural Resources and Environment
of the South Pacific Region
SPRFMO South Pacific Regional Fisheries Management Organisation
UN United Nations
UNCLOS United Nations Convention on the Law of the Sea
UNCSD United Nations Conference on Sustainable Development
UNECE United Nations Economic Commission for Europe
UNEP United Nations Environment Programme
UNFSA United Nations Fish Stocks Agreement
UNGA United Nations General Assembly
VME Vulnerable Marine Ecosystem
Environmental impact assessments in areas beyond national jurisdiction
EXECUTIVE SUMMARY
Conservation and the sustainable use of marine
biodiversity in areas beyond national jurisdiction (ABNJ)1 have been discussed for more than
a decade now under the auspices of the United
Nations General Assembly (UNGA) and of its
Ad-Hoc Open-ended Informal Working Group to
study issues relating to the conservation and sustainable use of marine biological diversity beyond
areas of national jurisdiction (BBNJ Working
Group). Within this framework, States must
decide by the end of the 69th session of the UNGA
(2014) if they can agree to launch the negotiations
on the development of an Implementing Agreement to the United Nations Convention on the Law
of the Sea (UNCLOS).2 One of the management
tools under consideration is environmental impact
assessment (EIA), commonly defined as “a process
of evaluating the likely environmental impacts of a
proposed project or development taking into account
inter-related socio-economic, cultural and human
health impacts, both beneficial and adverse”.3 EIAs
are considered as being particularly useful for:
mm determining and analysing likely environmental
impacts of proposed human activities;
mm developing mitigation measures or, wherever
1. The expression “areas beyond national jurisdiction”
encompasses the high seas, defined in Article 86 of
the United Nations Convention on the Law of the Sea
(UNCLOS) as “all parts of the sea that are not included
in the exclusive economic zone, in the territorial sea or
in the archipelagic waters of an archipelagic State” and
the Area, defined in Article 1 (1) (1) of the same convention as “the seabed and ocean floor and subsoil thereof,
beyond the limits of national jurisdiction”.
2. UNGA Resolution 66/288 of 27 July 2012, “The future
we want”, § 162.
3. Voluntary Guidelines on biodiversity-inclusive impact
assessment, §5, Annex to Decision VIII/28 on Impact
Assessment of the Convention on Biological Diversity
(CBD) 8th Conference of the Parties (COP)
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STUDY 01/2013
appropriate, recommending that an activity
should not be authorised because the impacts
would be too severe or because there is too
much uncertainty about them; and
mm helping the competent authority to make a final
decision about the conduct of an activity.
At the national level, and in transboundary contexts (for example, when activities conducted by a
State may have an impact on the environment of
a neighbouring State) relevant only to States and
not ABNJ, it is well-established practice to conduct
EIAs for activities that are likely to cause significant
adverse impacts to the environment. This is not the
case in ABNJ, where the requirement to carry out
EIAs is implemented in a fragmented way. A general
obligation exists under UNCLOS to carry out such
assessments “when States have reasonable grounds
for believing that planned activities under their jurisdiction or control may cause substantial pollution
of or significant and harmful changes to the marine
environment”.4 However, this requirement is poorly
implemented. Under the Convention on Biological
Diversity (CBD), Voluntary Guidelines for the consideration of biodiversity in environmental impact
assessments and strategic environmental assessments in marine and coastal areas were adopted recently.5 They provide mainly for scientific guidance,
leaving governance and policy issues unresolved.
The development of the obligation to conduct EIAs
has also arisen in some sectors (deep-sea bottom
fisheries, seabed mining in the Area, dumping of
waste and ocean fertilisation) and in a very small
number of regional frameworks (the Antarctic Treaty System, the OSPAR, SPREP and Barcelona regional seas conventions), with notable differences in the
extent of requirements and in their implementation.
4.
5.
Article 206 of UNCLOS.
CBD COP 11, Decision XI/18 on Marine and Coastal Biodiversity.
5
Environmental impact assessments in areas beyond national jurisdiction
Against this background, three questions can be
raised. First, where exactly to define gaps in the
current institutional and legal framework which
would justify the development of an international
agreement on EIAs in ABNJ? What could be the
possible content of such an agreement? And what
form could it take?
Although a general obligation to carry out EIAs
exists under UNCLOS, it appears that it has not
been fully implemented, because of its lack of precision and details. UNCLOS does not provide for
minimum standards and requirements to be applied uniformly in the conduct of EIAs in ABNJ. As
a result, when some sectors and regions decided to
develop specific requirements on this issue, it was
done through separate processes, which has led to
inconsistencies.
Even worse, not all sectors have developed their
own legally-binding requirements. Indeed, for a
large number of human activities taking place in
ABNJ, proponents are not required to carry out
EIAs when a proposed project is likely to cause significant impacts to marine biodiversity. In particular, such requirements do not exist for: “seabed activities other than mining, (e.g. cable and pipelines,
seabed installations, marine scientific research, bioprospecting, sea-based tourism); high seas activities
other than dumping and some fishing (e.g. shipping,
marine scientific research, floating installations
(e.g. wave, nuclear, CO2 mixers)); impacts of high
seas fishing activities on outer continental shelves
of coastal nations (e.g. deep-sea fishing impacts on
sedentary species and resources, vulnerable benthic
ecosystems); impacts of outer continental shelf activities on high seas (e.g. seismic testing noise); military activities; new or emerging uses of the seas”.6
The need to establish a global default mechanism
to cover new and emerging activities, along with
activities that are not covered by a sectoral mechanism, is the logical conclusion of this gap analysis.
A lack of the requirement to assess the cumulative impacts of human activities in ABNJ is another
important gap in the current international framework. This is due to the sectoral development of
EIA requirements, as sectoral frameworks mostly
take into consideration the separate impacts of the
activities they regulate.
Developed after EIAs had been introduced into
national legislation, Strategic Environmental Assessments (SEAs) are “the evaluation of the likely
environmental, including health, effects, which
comprises the determination of the scope of an
6. Gjerde K.M. et al. (2008), “Regulatory and Governance
Gaps in the International Regime for the Conservation and
Sustainable Use of Marine Biodiversity in Areas beyond
National Jurisdiction”, IUCN, Gland, Switzerland, p.8.
6
environmental report and its preparation, the carrying-out of public participation and consultations,
and the taking into account of the environmental
report and the results of the public participation
and consultations in a plan or programme”7. SEAs
are not an obligation under UNCLOS, and requirements to conduct them are lacking in many sectoral and regional frameworks.
Beyond the legal gaps highlighted in the previous paragraphs, institutional gaps also exist. For
example, there is no global competent authority
which would have the potential to monitor the implementation, by States and international organisations, of their duty to carry out EIAs in ABNJ.
Even if a global instrument on EIAs in ABNJ is
developed, it will not be sufficient to provide for
a general obligation to carry out EIAs for human
activities that are likely to have significant adverse
impacts on marine biodiversity in ABNJ. Details on
the content of this requirement will be needed.
First, an international instrument will need to
include general objectives or principles against
which the outcome of the EIA will be reviewed
and the final decision on whether to authorise
the proposed activity will be taken. This approach
was retained for example in the 1991 Protocol on
Environmental Protection to the Antarctic Treaty.
Its Article 3 on Environmental Principles states
that “activities in the Antarctic Treaty area shall be
planned and conducted so as to avoid: (i) adverse effects on climate or weather patterns; (ii) significant
adverse effects on air or water quality; (iii) significant changes in the atmospheric, terrestrial (including aquatic) glacial or marine environments; (iv)
detrimental changes in the distribution, abundance
or productivity of species of fauna and flora; (v) further jeopardy to endangered or threatened species or
populations of such species; or (vi) degradation of,
or substantial risk to, areas of biological, scientific,
historic, aesthetic or wilderness significance”. With
respect to the general principles or objectives that
need to be taken into account in the conduct of an
EIA and in the final decision on whether or not to
proceed with the activity, a 2007 study suggested
that “the effectiveness of EIA would be bolstered if
a specific aim was to deliver ‘no net environmental
deterioration’ and if this could not be demonstrated,
to require the application of the precautionary principle in decision-making”.8
7.
8.
Article 2 (6) of the Protocol on Strategic Environmental Assessment to the Convention on Environmental
Impact Assessment in a Transboundary Context (the
Kiev Protocol).
Jay S., Jones C., Slinn P., Wood C. (2007), “Environmental impact assessment: Retrospect and prospect”,
Environmental Impact Assessment Review 27, p. 298.
STUDY 01/2013
IDDRI
Environmental impact assessments in areas beyond national jurisdiction
Guidance on the steps to follow to conduct an
EIA has already been issued in various non-legally
binding instruments. In the most recent one, the
2012 CBD Voluntary Guidelines for the consideration of biodiversity in EIAs and SEAs in marine and
coastal areas, the following procedural steps are
defined:
mm Screening, to determine which activities will be
subject to an EIA;
mm Scoping, to identify which potential impacts
are relevant to assess and to find alternative
options;
mm Assessing and evaluating of impacts and development of alternatives;
mm Reporting of the Environmental Impact Statement (EIS);
mm Reviewing of the EIS;
mm Decision-making;
mm Monitoring, compliance, enforcement and environmental auditing.
The screening process itself would need to be
clarified in any international instrument on the
subject. First, there would be a need to provide a
threshold above which EIAs will be conducted. In
existing instruments, this threshold is often found
under the notion of “significant adverse impact”.
Within the Antarctic Treaty System (ATS), the
threshold used is the notion of “minor or transitory
impact”. In addition, the procedure implemented
within this regional framework could be a useful
model for any future international agreement, as it
provides for a level of international scrutiny. In this
system, the flag State is the final decision-making
authority when a proposed activity is likely to have,
at most, only a minor or transitory impact. But if
the proposed activity is likely to have more than
a minor or transitory impact, the EIS is circulated
between Contracting Parties to the Protocol on Environmental Protection for comments, reviewed by
an advisory scientific committee (the Committee
for Environmental Protection) and then sent for
approval to the Antarctic Treaty Consultative Meeting - the governing body of the Antarctic Treaty.
In addition to guidance to help States and competent authorities determine what qualifies as
a significant adverse impact, an international
agreement could also include lists of areas where
EIAs will always be needed (for example, in Ecologically or Biologically Significant Marine Areas
or in Vulnerable Marine Ecosystems) and lists of
activities which would always be subject to such
assessments.9
9.
IDDRI
With respect to activities, this is already the case in the
Espoo Convention on Environmental Impact Assessment in a Transboundary Context and in its Kiev Pro-
STUDY 01/2013
An international agreement would also need to
define what would be the minimum components
of an EIS. Several examples already exist in this
respect, for example within the ATS where such
requirements vary depending on the level of likely
impacts concerned, and also in the Espoo Convention. In the latter, they comprise inter alia:
mm A description of the activity and of its
alternatives;
mm A description of the likely to be significantly affected environment and of potential impacts;
mm A description of mitigation measures;
mm An indication of predictive methods used;
mm An identification of gaps in knowledge;
mm An outline for monitoring and management;
mm A non technical summary.10
All these requirements would be minimum
standards which would establish the default mechanism needed to manage human activities that are
not yet subject to EIAs, and would be integrated
into sectoral instruments as well.
In addition, an international instrument could
provide for the creation of an advisory scientific
and technical body. It would be tasked with (i) the
provision of advice on EIAs subject to international
scrutiny, (ii) the management of a public EIA database, (iii) the evaluation of cumulative impacts
when needed and (iv) the definition of more specific guidelines for activities managed through the
default mechanism. The governing body of the
international agreement (either the Conference
of the Parties to this agreement, or a newly created global authority, or an International Seabed
Authority with an extended mandate) would take
decisions on EIAs based on advice provided by the
scientific body.
To go further, States could agree to include specific requirements on SEAs and establish a global
compliance committee. This committee would review national reports of implementation provided
by Contracting Parties. In addition, a provision
could allow Contracting Parties with concerns
about EIAs conducted by other States as well as
civil society representatives to report to the Committee, which would adopt recommendations on
the subject.
Suggestions to enhance the international framework for EIAs in ABNJ were made in the course of
previous meetings of the BBNJ Working Group.
They ranged from the adoption of voluntary
tocol on Strategic Environmental Assessment to the
Convention on Environmental Impact Assessment in a
Transboundary Context.
10. Espoo Convention on Environmental Impact Assessment in a Transboundary Context, Appendix II.
7
Environmental impact assessments in areas beyond national jurisdiction
guidelines by the industry to the development of
non-legally binding codes of conducts or of legally-binding EIA requirements within sectors and to
the development of an Implementing Agreement
to UNCLOS. Voluntary instruments and legallybinding sectoral approaches would be valid options and would probably be needed at some point
as an interim solution, or in complement to a global initiative. But they would not allow the creation
of the global default mechanism needed, to provide for a set of minimum standards and requirements to ensure consistency in the conduct of EIAs
in ABNJ or to establish a global obligation to assess
cumulative impacts of human activities in the marine environment.
Given the state of play of international negotiations and discussions, an Implementing Agreement to UNCLOS on the conservation and sustainable use of marine biodiversity in ABNJ would be
the most logical instrument through which the EIA
issue could be addressed. But even if negotiations
on the subject are not finally launched, there are
other means through which the conclusion of an
international instrument on EIAs in ABNJ could
succeed. These include, for example:
mm The adoption of an additional protocol to the
CBD, based on its Article 29;
mm The adoption of a protocol to the Espoo Convention on Environmental Impact Assessment in a
Transboundary Context, akin to the Kiev Protocol on SEAs;
mm The adoption of a stand-alone legally-binding
instrument.11
11. Options presented below are based on the conclusions
of a presentation delivered by Prof. R. Warner, available at: http://ancors.uow.edu.au/content/groups/
public/@web/@law/@ancors/documents/docs/
uow103164.pdf.
8
Looking at the negotiations that have taken
place within the BBNJ Working Group so far, the
EIA issue appears to have been one of the least
controversial subjects for debate. Many States
agree that there is a need for such assessments
in ABNJ (although they do not entirely agree on
the practical implementation modalities). If negotiations on an Implementing Agreement to UNCLOS dealing inter alia with EIAs are launched, the
greatest challenge will be to add substance to this
requirement so as to avoid the development of an
article that merely states that EIAs are required for
all human activities in ABNJ. Only if this substance
is adequately defined and applied will States fulfil
their duties to implement the precautionary and
no-harm principles, amongst others, which are
embodied in international environmental law.
Moving away from the procedural requirements
which would be defined in the international
agreement, it would also be useful to start thinking about the content and quality of these EIAs, so
that ultimately, EIAs are truly used as a decisionmaking tool and not a decision aiding-tool.12
12. On this subject, see Jay S., Jones C., Slinn P., Wood
C. (2007), “Environmental impact assessment: Retrospect and prospect”, Environmental Impact Assessment
Review 27, pp. 287-300.
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IDDRI
Environmental impact assessments in areas beyond national jurisdiction
1. INTRODUCTION
For more than a decade, the international
community has been debating the status of
marine biodiversity in areas beyond national
jurisdiction (ABNJ)13 and whether or not this
biodiversity would require enhanced protection
through a better application of existing instruments or the adoption of a new legal instrument.
This discussion takes place in the framework of
the United Nations General Assembly (UNGA),
which established in 2004 an Ad Hoc Openended Informal Working Group to study issues
relating to the conservation and sustainable
use of marine biological diversity beyond areas
of national jurisdiction (the BBNJ Working
Group).14 To date, the BBNJ Working Group has
already met five times (in 2006, 2008, 2010, 2011
and 2012) and has discussed a large number of
issues, ranging from the status of marine genetic
resources to the use of area-based management
tools such as marine protected areas (MPAs)
to efficiently conserve marine biodiversity in
ABNJ.15 In 2011, it recommended to the UNGA
13. The expression “areas beyond national jurisdiction”
encompasses the high seas, defined in Article 86 of
the United Nations Convention on the Law of the Sea
(UNCLOS) as “all parts of the sea that are not included
in the exclusive economic zone, in the territorial sea or
in the archipelagic waters of an archipelagic State”, and
the Area, defined in Article 1 (1) (1) of the same convention as “the seabed and ocean floor and subsoil thereof,
beyond the limits of national jurisdiction”.
14. UNGA Resolution 59/24 of 17 November 2004, Oceans
and the Law of the Sea, § 73.
15. For a summary of discussions held within the BBNJ
Working Group, see the outcomes of the meetings, available under: http://www.un.org/Depts/los/biodiversityworkinggroup/biodiversityworkinggroup.htm.
IDDRI
STUDY 01/2013
that it initiates a process “with a view to ensuring
that the legal framework for the conservation and
sustainable use of marine biodiversity in areas
beyond national jurisdiction effectively addresses
those issues by identifying gaps and ways forward,
including through the implementation of existing
instruments and the possible development of a
multilateral agreement under the United Nations
Convention on the Law of the Sea”.16 This process
should address “together and as a whole, marine
genetic resources, including questions on the
sharing of benefits, measures such as area-based
management tools, including marine protected
areas, and environmental impact assessments,
capacity-building and the transfer of marine
technology”. In 2012, the BBNJ Working Group
concentrated on the organisation of two intersessional workshops to be held in 2013 (one on
marine genetic resources, the other on conservation and management tools) whose aim would be
to improve the understanding of the issues and
to clarify key questions as an input to its work.17
The same year, States gathered at the United
Nations Conference on Sustainable Development
(UNCSD or “Rio + 20”) committed “to address,
on an urgent basis, the issue of the conservation
and sustainable use of marine biological diversity
beyond areas of national jurisdiction, including by
taking a decision on the development of an international instrument under the Convention on the
16. See document A/66/119, Letter dated 30 June 2011
from the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General
Assembly, § 1 (1) (a) and (b).
17. See document A/67/95, Letter dated 8 June 2012 from
the Co-Chairs of the Ad Hoc Open-ended Informal Working Group to the President of the General Assembly.
9
Environmental impact assessments in areas beyond national jurisdiction
Law of the Sea” before the end of the sixty-ninth
session of the General Assembly.18
Of all the topics discussed within the BBNJ
Working Group, environmental impact assessments (EIAs) seem to be one of the less controversial. During the 2006 meeting, for example, delegations noted that “environmental management
tools should be more widely used in the management of marine resources beyond areas of national
jurisdiction, including the use of environmental
impact assessments”.19 This was further emphasised in 200820, in 201021 and in 2011.22 In 2012, it
was included as a topic in the terms of reference of
the intersessional workshop on conservation and
management tools, which will be held in the first
half of 2013.23 One of the reasons for this consensus
on the need for EIAs in ABNJ is that the use of this
tool is currently a well-established practice within
many national jurisdictions. Their utilisation in
national decision-making processes can be traced
18. See UNGA Resolution 66/288 of 27 July 2012, “The
future we want”, §162.
19. See document A/61/65, Report dated 9 March 2006
of the Ad Hoc Open-ended Informal Working Group to
study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of
national jurisdiction, §34.
20. See document A/63/79, Letter dated 15 May 2008
from the Co-Chairpersons of the Ad Hoc Open-ended
Informal Working Group to study issues relating to
the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction
addressed to the President of the General Assembly, §
54: “the Assembly may wish to consider referring the
following issues to the Working Group: (…) (c) the
development and implementation of effective environmental impact assessments as a tool for improving
ocean management”.
21. See document A/65/68, Letter dated 16 March 2010
from the Co-Chairpersons of the Ad Hoc Open-ended
Informal Working Group to the President of the General Assembly, §14 to 16: “the General Assembly should
recognise the importance of environmental impact
assessments, in particular for the implementation
of ecosystem and precautionary approaches. (…) It
should recognise the importance of further developing
scientific and technical guidance on the implementation of environmental impact assessments with respect
to planned activities in areas beyond national jurisdiction, including consideration of the assessment of
cumulative impacts”.
22. See document A/66/119, Letter dated 30 June 2011
from the Co-Chairs of the Ad Hoc Open-ended Informal
Working Group to the President of the General Assembly, § 34: “the view was expressed that the United
Nations should take a stronger role in environmental
impact assessments, which could include elaborating
principles to assist in the implementation of environmental impact assessments on the high seas”.
23. See document A/67/95, Letter dated 8 June 2012 from
the Co-Chairs of the Ad Hoc Open-ended Informal
Working Group to the President of the General Assembly, Appendix “Terms of reference for the intersessional
workshops”.
10
back to the late 1960s, where the first legislations
in this respect were enacted.24 As of today, more
than 100 countries require (with certain differences) the utilisation of EIAs.25 At the international
level, EIAs have emerged as one of the appropriate
tools to implement several environmental principles, including the no-harm principle, first defined
in Principle 21 of the 1972 Stockholm Declaration26 and the precautionary principle embodied
in Principle 15 of the 1992 Rio Declaration.27 This
has led in the past thirty years to the development
of various international agreements or soft law
instruments which include the obligation to carry
out EIAs and, as a consequence, to a profusion of
definitions which might be applied to describe
this tool. Among them, it is worth quoting the one
given by the Convention on Biological Diversity
(CBD) in its Voluntary Guidelines on biodiversityinclusive impact assessment: “environmental impact assessment (EIA) is a process of evaluating the
likely environmental impacts of a proposed project
or development taking into account inter-related socio-economic, cultural and human health impacts,
both beneficial and adverse”.28
Nevertheless, if within the BBNJ Working Group,
States seem to agree that, in accordance with the
general principles they have adopted at the international level, EIAs should be conducted for human activities in ABNJ, they do not seem to have
reached the same consensus with respect to the
content of this obligation and to the way it should
24. See for example the US National Environmental Policy
Act of 1969; the Australian Environment Protection
(Impact of Proposals) Act of 1974; the European Union
(EU) Council Directive 85/337/EEC of 27 June 1985
on the assessment of the effects of certain public and
private projects on the environment.
25.See http://www.unep.ch/etu/publications/EIA_2ed/
EIA_E_top1_body.PDF, p.8.
26. Principle 21 of the 1972 Declaration of the United
Nations Conference on the Human Environment:
“States have, in accordance with the Charter of the
United Nations and the principles of international law,
the sovereign right to exploit their own resources pursuant to their own environmental policies, and the
responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of
national jurisdiction”.
27. Principle 15 of the 1992 Rio Declaration on Environment and Development: “In order to protect the environment, the precautionary approach shall be widely
applied by States according to their capabilities.
Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as
a reason for postponing cost-effective measures to prevent environmental degradation”.
28. Voluntary Guidelines on biodiversity-inclusive impact
assessment, §5, Annex to CBD COP 8 Decision VIII/28,
Impact assessment: voluntary guidelines on biodiversity inclusive impact assessment.
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be implemented. As recently as 2012, the Co-Chairs
of the Working Group noted in their report that “a
proposal was made to consider the extent to which enhanced efforts on environmental impact assessments
could be addressed within existing legal frameworks”
whereas “several delegations observed that prevention of the deterioration of the marine environment
and biodiversity could only be achieved through
the implementation of environmental impact assessments and strategic environmental assessments
incorporating cumulative impacts and addressing
impacts from new and emerging activities, including
experimental activities”.29 The issue here is the same
as the one discussed for MPAs and marine genetic
resources: is there a need to adopt an implementing agreement to the United Nations Convention
on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biodiversity in
ABNJ? Or would an enhanced implementation of
existing instruments be sufficient to make sure that
this fragile biodiversity is adequately protected and
sustainably used? With respect to EIAs, while trying to answer this question, this study follows the
approach developed in the 2011 recommendations
of the BBNJ Working Group: first, it examines the
current framework (2) to identify possible gaps (3)
and then suggests possible ways forward (4).
2. THE EXISTING FRAMEWORK
FOR EIAS IN ABNJ
Since the development of national frameworks for
the conduct of EIAs which started in the late 1960s,
a number of international instruments, whether
legally binding or not, have included and further
defined this requirement. Some of them are of a
general nature, whereas others apply specifically,
although in a sectoral or regional manner, to
marine biodiversity in ABNJ.
2.1. A widespread practice
at the international level
The 1987 United Nations Environment Programme
(UNEP) Goals and Principles of Environmental
Impact Assessment was one of the first international instruments, although not legally binding,
to provide a general guidance on the conduct of
EIAs.30 It defines EIAs as “an examination, analysis
29. See document A/67/95, Letter dated 8 June 2012 from
the Co-Chairs of the Ad-Hoc Open-ended Informal
Working Group to the President of the General Assembly, § 25 and 26.
30. UNEP 1987 Goals and Principles of Environmental
Impact Assessment, adopted by Decision 14/25 of the
Governing Council of UNEP on 17 June 1987.
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and assessment of planned activities with a view to
ensuring environmentally sound and sustainable
development” and further notes that “the EIA goals
and principles set out below are necessarily general
in nature and may be further refined when fulfilling
EIA tasks at the national, regional and international
levels”. According to Principle 1 of this instrument,
an EIA should be conducted “where the extent,
nature or location of a proposed activity is such that
it is likely to significantly affect the environment”.
The Goals and Principles do not define the thresholds above which activities are likely to significantly affect the environment and leave to the
competent authorities the task to define “criteria
and procedures for determining whether an activity
is likely to significantly affect the environment and
is therefore subject to an EIA”. Principle 4 provides a
detailed list of the minimum components of an EIA:
“(a) a description of the proposed activity;
(b) a description of the potentially affected environment, including specific information necessary
for identifying and assessing the environmental effects of the proposed activity;
(c) a description of practical alternatives, as
appropriate;
(d) an assessment of the likely or potential environmental impacts of the proposed activity and
alternatives, including the direct, indirect, cumulative, short-term and long-term effects;
(e) an identification and description of measures
available to mitigate adverse environmental impacts
of the proposed activity and alternatives, and an assessment of those measures;
(f) an identification of gaps in knowledge and uncertainties which may be encountered in compiling
the required information;
(g) an indication of whether the environment of
any other State or areas beyond national jurisdiction is likely to be affected by the proposed activity
or alternatives;
(h) a brief, non-technical summary of the information provided under the above headings”.
Interestingly, Principle 11 states that “States
should endeavour to conclude bilateral, regional
or multilateral agreements, as appropriate, so as
to provide, on the basis of reciprocity, notification,
exchange of information and agreed-upon consultation on the potential environmental effects of activities under their control or jurisdiction which are
likely to significantly affect other States or areas
beyond national jurisdiction”. This is a recognition of the need to undertake EIAs not only at
the national level, but also in transboundary
contexts, when planned activities might affect
other States or ABNJ.
At the 1992 United Nations Conference on Environment and Development, States recognised,
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Environmental impact assessments in areas beyond national jurisdiction
in Principle 17 of the final declaration that “environmental impact assessment, as a national instrument, shall be undertaken for proposed activities
that are likely to have a significant adverse impact
on the environment and are subject to a decision of
a competent national authority” but did not further
develop the need to undertake EIAs in a transboundary context. This was done mainly in a particular regional context.
The Convention on Environmental Impact Assessment in a Transboundary Context, also called
the Espoo Convention, was adopted on 25 February 1991 and entered into force on 10 September
1997. It is a United Nations Economic Commission
for Europe (UNECE) Convention, and therefore is
only binding for States that are members or have
consultative status within this Commission.31 It
currently has 45 Parties, mostly European States,
in addition to Canada. This Convention applies
to a defined list of activities32 which are likely to
cause significant adverse transboundary impacts.
In the text, “transboundary impact” is defined as
“any impact, not exclusively of a global nature, within an area under the jurisdiction of a Party caused
by a proposed activity the physical origin of which
is situated wholly or in part within the area under
the jurisdiction of another Party”. It therefore excludes from its scope ABNJ, but nevertheless offers
an interesting example of an international legally
binding instrument on EIAs. Its Annex II outlines
the minimum requirements for the content of an
EIA, which are more or less identical to the requirements set out in the 1987 UNEP Goals and
Principles, with the exception that Parties to the
Espoo Convention should include, “where appropriate, an outline for monitoring and management
31. An amendment to the Convention, adopted in 2001
but not yet entered into force, opens the Convention to
accession upon approval by UN Member States that are
not members of the UNECE.
32. Appendix I of the Convention provides a list of these
activities. It includes inter alia various installations, such
as crude oil refineries, thermal power stations, trading
ports, waste disposal installations for the incineration,
chemical treatment or landfill of toxic and dangerous
wastes, or offshore hydrocarbon production. The list is
however not exhaustive, as Article 2 (5) of the Convention states that “Concerned Parties shall, at the initiative
of any such Party, enter into discussions on whether one
or more proposed activities not listed in Appendix I is or
are likely to cause a significant adverse impact and thus
should be treated as if it or they were so listed”. Interestingly, Appendix III of the Convention establishes a
list of criteria whose aim is to help Parties to determine
the environmental significance of activities not listed in
Appendix I. These criteria are the size of the proposed
activity, its location (i.e. proposed activities are located
in or close to an area of special environmental sensitivity
or importance), and its effects, such as particularly complex and potentially adverse impacts.
12
programmes and any plans for post-project analysis”. Article 5 of the Convention states that the
Party of origin where the activity likely to have an
impact will take place shall, after completing the
EIA, consult with the potentially affected Party to
discuss the potential transboundary impact of the
proposed activity and measures to reduce or eliminate its impact. The final decision on the conduct
of the activity is adopted by the Party of origin
with due account taken of the results of the EIA
and of the consultation with the affected State.33
The Espoo Convention was complemented in
2003 with the adoption of a Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a
Transboundary Context, or the Kiev Protocol,
which subsequently entered into force on 11 July
2010 and now has 25 Contracting Parties.34 This
Protocol deals with Strategic Environmental Assessment (SEA), which is a less used tool than the
EIA but equally important. It is defined in Article
2 (6) as “the evaluation of the likely environmental, including health, effects, which comprises the
determination of the scope of an environmental report and its preparation, the carrying-out of public
participation and consultations, and the taking into
account of the environmental report and the results
of the public participation and consultations in a
plan or programme”. SEAs are therefore different
to EIAs, as they do not apply at a project level, but
rather before, at a policy, plan or programme level.
In this respect, Article 4 of the Protocol states
that “each Party shall ensure that a strategic environmental assessment is carried out for plans and
programmes referred to in paragraphs 2, 3 and 4
which are likely to have significant environmental, including health, effects”. The plans and programmes mentioned here are further defined as
concerning “agriculture, forestry, fisheries, energy,
industry including mining, transport, regional development, waste management, water management,
telecommunications, tourism, town and country
planning or land use” to the extent that they set the
framework under which consent for projects listed
in annexes to the Protocol might be granted. As for
33. Adoption of the Espoo Convention has prompted, at
the regional level, the negotiation of a draft Protocol
on Environmental Impact Assessment in a Transboundary Context to the Framework Convention for the Protection of the Marine Environment of the Caspian Sea
(Tehran Convention). This draft Protocol was presented to the Contracting Parties to the Tehran Convention during their third COP (see document TC/
COP3/4/Edited of 22 July 2011).
34. It should be noted that according to its Article 23, the
Kiev Protocol is open to accession to all States Members
of the United Nations, upon approval by the Meeting of
the Parties to the Protocol.
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the Espoo Convention, it is also anticipated to include more plans and programmes in its scope if
they are likely to have significant environmental,
including health, effects. The criteria for determining the likely significant environmental effects
are listed in Annex III of the Protocol and are more
precise and numerous than those listed in the Espoo Convention. But, similarly to the Convention,
the Kiev Protocol only applies between States Parties in as much as transboundary effects are concerned and does not encompass the conduct of
SEAs in ABNJ.
The list of instruments presented here does not
intend to be exhaustive. There are other texts,
declarations or guidelines, whether global or regional, which contain EIA dispositions. Among
them, it is worth quoting the 2002 Johannesburg
Plan of Implementation which specifically indicates that States should “build capacity in marine
science, information and management, through,
inter alia, promoting the use of environmental impact assessments and environmental evaluation
and reporting techniques for projects or activities
that are potentially harmful to the coastal and marine environments and their living and non-living
resources”.35
The need to carry out EIAs in a transboundary context when an activity is likely to cause
significant adverse impact has gained customary international law status. First, in a 1996
advisory opinion, the International Court of Justice (ICJ) noted that “the existence of the general
obligation of States to ensure that activities within
their jurisdiction and control respect the environment of other States or of areas beyond national
control is now part of the corpus of international
law relating to the environment”.36 In addition,
this was further developed by the ICJ in its 2010
judgment on the Pulp Mills case, where it expressly observed that “the obligation to protect
and preserve, under Article 41(a) of the Statute
has to be interpreted in accordance with a practice,
which in recent years has gained so much acceptance that it may now be considered a requirement
under general international law to undertake an
environmental impact assessment where there is
a risk that the proposed industrial activity may
have a significant adverse impact in a transboundary context, in particular on a shared resource.
Moreover, due diligence, and the duty of vigilance
and prevention which it implies, would not be considered to have been exercised, if a party planning
works liable to affect the regime of the river or the
35. 2002 Johannesburg Plan of Implementation, § 36 (c).
36. See Legality of the Threats or Use of Nuclear Weapons,
Advisory Opinion, I.C.J. Reports 1996 (I), p.242, §29.
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Box 1. Procedural steps in the conduct of
EIAs.
The International Association for Impact Assessment (IAIA), a network on best practices in the use of impact assessment for informed
decision-making regarding policies, programmes, plans and projects,
has developed some guidance on the general conduct of EIAs. In
assessing what could be the operating principles of an EIA, it defined
several procedural steps to follow:
“Screening: to determine whether or not a proposal should be subject to an EIA and, if so, at what level of detail;
Scoping: to identify the issues and impacts that are likely to be
important and to establish terms of reference for an EIA;
Examination of alternatives: to establish the preferred or most
environmentally sound and benign option for achieving proposal
objectives;
Impact analysis: to identify and predict the likely environmental,
social and other related effects of the proposal;
Mitigation and impact management: to establish the measures that
are necessary to avoid, minimise or offset predicted adverse impacts
and, where appropriate, to incorporate these into an environmental
management plan or system;
Evaluation of significance: to determine the relative importance
and acceptability of residual impacts (i.e., impacts that cannot be
mitigated);
Preparation of environmental impact statement (EIS) or report: to
document clearly and impartially impacts of the proposal, the proposed measures for mitigation, the significance of effects, and the
concerns of the interested public and the communities affected by the
proposal;
Review of the EIS: to determine whether the report meets its terms
of reference, provides a satisfactory assessment of the proposal(s)
and contains the information required for decision-making;
Decision-making: to approve or reject the proposal and to establish
the terms and conditions for its implementation;
Follow-up: to ensure that the terms and conditions of approval are
met; to monitor the impacts of development and the effectiveness of
mitigation measures; to strengthen future EIA application and mitigation measures; and, when required, to undertake environmental audit
and process evaluation to optimise environmental management”. 1
Although in some cases these procedural steps go by other names
or several of them might be put together in one step, they are more
or less the same as the ones defined in much of the legislation and
international agreements in existence today.
A general corpus of obligations does appear to exist with respect
to EIAs, and, to a certain extent, to SEAs, conducted in a transboundary context. Whether this applies specifically to marine biodiversity in
ABNJ is another issue.
1.
IAIA (1999), “Principles of Environmental Impact Assessment Best Practice”, p.4.
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Environmental impact assessments in areas beyond national jurisdiction
quality of its waters did not undertake an environmental impact assessment on the potential effects
of such works”.37
2.2. Instruments addressing
specifically EIAs in ABNJ
With respect to marine biodiversity in ABNJ,
several instruments, whether legally binding or
not, already deal with the conduct of EIAs. Some
of them are of a global nature, whilst others are
sector or region specific, and the extent of the obligation they contain can vary considerably.
2.2.1. Global instruments
Two specific instruments have developed general
requirements regarding EIAs in ABNJ: UNCLOS
and the CBD.
2.2.1.1. The United Nations Convention on the
Law of the Sea
Three articles within UNCLOS establish a general
framework for the conduct of EIAs in the marine
environment, irrespective of the fact that activities
subject to this requirement are located in ABNJ or
in areas within national jurisdiction. First, Article
204 imposes on States the obligation, directly or
through competent international organisations,
to monitor the risks or effects of pollution of the
marine environment.38 The article further specifies that “in particular, States shall keep under
surveillance the effects of any activities which they
permit or in which they engage in order to determine whether these activities are likely to pollute the
marine environment”. The criteria retained here is
the fact that activities are under the control or the
jurisdiction of a State, irrespective of where they
are taking place (the high seas, the Area, the territorial sea…). It is also emphasised in Article 206
according to which “when States have reasonable
grounds for believing that planned activities under
their jurisdiction or control may cause substantial
pollution of or significant and harmful changes to
the marine environment, they shall, as far as practicable, assess the potential effects of such activities
on the marine environment and shall communicate
37. See Pulp Mills On the River Uruguay (Argentine v. Uruguay) Judgment, I.C.J. Reports 2010, § 204.
38. According to Article 1 (4) of UNCLOS, “pollution of the
marine environment means the introduction by man,
directly or indirectly, of substances or energy into the
marine environment, including estuaries, which results
or is likely to result in such deleterious effects as harm
to marine living resources and marine life, hazards to
human health, hindrance to marine activities, including
fishing and other legitimate uses of the sea, impairment
of quality for use of sea water and reduction of amenities”.
14
reports of the results of such assessments in the
manner provided in article 205”. With respect to the
reports of the assessments, Article 205 states that
“States shall publish reports of the results obtained
pursuant to article 204 or provide such reports at
appropriate intervals to the competent international
organisations, which should make them available to
all States”.
Although at first glance, it appears that there
is a general requirement for States under UNCLOS to carry out EIAs for activities under
their jurisdiction or control, the application of
this requirement does not go without raising a
number of crucial issues. Article 206 itself introduces some conditions which must be fulfilled for
States to have the obligation to carry out an EIA. In
fact, States shall assess the effects of planned activities “as far as practicable” and only if they have
“reasonable grounds for believing that planned activities under their jurisdiction or control may cause
substantial pollution of or significant and harmful
changes to the marine environment”. It is not further specified in the Convention what is meant by
“reasonable grounds” and above which threshold a
pollution or a change are deemed to be substantial
or significant and harmful. In addition, “Article 206
(…) is silent on the question of what is required in
an EIA, and in contrast to Articles 207-211 it makes
no reference to internationally agreed rules and
standards”.39
Furthermore, with respect to the reports of the
results of EIAs mentioned in Article 205, information is lacking for most of the activities undertaken
in ABNJ. In 2011, in an effort to compile information related to EIAs in ABNJ, the Secretary General
produced a report dealing inter alia with this issue.40 In this document, “the European Union stated
that information concerning assessments undertaken with respect to planned activities in areas beyond
national jurisdiction, including capacity-building
aspects, was still disperse and scarce. Some European Union States had reported that they did not carry
out activities in areas beyond national jurisdiction,
while in the case of those who may have carried out
activities in those areas there was no information on
any environmental impact assessment undertaken,
except where such assessments were compulsory under international agreements, rules of international
organisations or European Union regulations”.
39. See Boyle A. (2007), “The Environmental Jurisprudence of the International Tribunal for the Law of the
Sea”, The International Journal of Marine and Coastal
Law 22, p. 377.
40. See document A/66/70, Oceans and the Law of the Sea
– Report of the Secretary General.
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Box 2. Conclusions of the Manila Workshop
with respect to EIAs in ABNJ
The review conducted by the participants to the Manila Workshop
on EIAs concluded that the 2006 Guidelines of the CBD were almost
exclusively based on EIAs conducted for terrestrial, freshwater and
coastal ecosystems and were not fully adapted to ABNJ because a
number of differences, at the ecological, governance and practical
levels between these frameworks were underlined by the workshop
participants.
At the ecological level, it was noted that:
- The great depth of most ocean ABNJ create extreme conditions
for biodiversity, which must be taken into account in the EIA process;
- Habitat patchiness of the water column in ABNJ occurs on much
larger spatial scales if compared with coastal areas. In addition,
the lower level of primary and secondary productivity occurring in
most of the ABNJ means that “populations and communities can,
in general, sustain only lower levels of perturbation without serious
adverse impacts”.1
- The lower productivity of ecosystems in ABNJ along with the life
history characteristics of component species mean that recovery
times from perturbations would be longer than in coastal and terrestrial areas;
- The issue of the connectivity of processes and ecosystem components is also important for biodiversity in ABNJ and in the relationship between coastal and deep-sea areas; but knowledge on this
matter is still very limited.
Several governance differences were also highlighted:
- The different legal framework for ABNJ compared to areas within
national jurisdiction. This encompasses the differences between
the regimes governing respectively the Area and the high seas, and
the large number of organisations which, at the global and regional
levels, have competence in ABNJ, together with the flag States.
One important point to note is the fact that, at the global level,
1.
UNEP/CBD/EW-EIAMA/2 of 20 November 2009,
“Report of the Expert Workshop on Scientific and Technical Aspects Relevant to Environmental Impact Assessment in Marine Areas Beyond National Jurisdiction”, p.11.
2.2.1.2. The Convention on Biological Diversity
The question of whether the CBD includes in
its scope ABNJ has been debated at the international level over these past years.41 Although
41. For example, with respect to marine protected areas
(MPAs) in ABNJ, see Gjerde K.M. and Rulska-Domino
A. (2012), “Marine Protected Areas beyond National
Jurisdiction: Some Practical Perspectives for Moving Ahead”, The International Journal of Marine and
Coastal Law 27, p. 10: “moreover, the UNGA has yet to
formally recognise the role of the CBD as a provider of
scientific and technical advice with respect to MPAs in
ABNJ. While State Parties to the CBD have agreed to
such a role for the CBD, some of the same States at the
UNGA have been reluctant to accept it.”
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governance issues are discussed in the framework of the UNGA;
- Stakeholder involvement for EIAs conducted in coastal and terrestrial areas is an important component of the process, but it would
be much more difficult to define who would be the stakeholders in
ABNJ because of the remoteness of these areas;
- Participants also highlighted that in ABNJ, a certain number of
obligations with respect to EIAs might be contained in international
conventions. But these conventions very often leave the implementation of general obligations to flag States, something which might
lead to different standards of compliance among them.
With respect to practical differences:
- As knowledge is more limited for ecosystems in ABNJ, it might be
more difficult to assess the risks in these areas;
- As the industry and the flag State concerned are based far from
the site of the concerned activity, the cost of conducting an EIA
might be higher, as would the costs linked to follow-up management, control, surveillance and monitoring. The issue of the costs
of conducting EIAs in ABNJ was discussed in a report of the UN
Secretary General in 2011, which explained that “available studies have estimated that the cost of preparing an environmental
impact assessment rarely exceeds 1 per cent of the project costs.
Costs in excess of 1 per cent seem to occur in relation to particularly controversial projects in sensitive environments, or where good
practice has not been followed. Additional costs such as translation
and travel costs, are expected for assessments in a transboundary
context, and may also need to be taken into account for assessments
undertaken beyond areas of national jurisdiction”.2
- Capacity-building needs for EIAs in ABNJ might be even larger
than these same needs in coastal and terrestrial areas;
- In ABNJ, the application of precaution will be even more important in decision-making and there will be a greater dependence on
incremental “test-bed” approaches to permitting activities, given
the outcome of an EIA.
2.
Report of the UN Secretary-General A/66/70 of 22 March
2011, “Oceans and the Law of the Sea”, §130.
some agree that the UNGA is the only legitimate
international arena where global issues related
to marine biodiversity in ABNJ can be discussed,
under the overarching framework of UNCLOS,
several articles of the CBD itself are unquestionably relevant with respect to these questions.
In particular, its Article 4 states that the Convention applies to processes or activities under the
jurisdiction and control of States that are carried
out in ABNJ or in areas within national jurisdiction; while its Article 5 provides for cooperation
between Contracting Parties for the conservation and sustainable use of biological diversity in
respect of ABNJ.
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Environmental impact assessments in areas beyond national jurisdiction
Since 2004, the Conference of the Parties to
the CBD has been discussing issues related to the
conservation of marine biodiversity in ABNJ, and
more especially its scientific and technical aspects,
leaving the governance issues to the UNGA.42 Over
the past years, it has considerably developed its expertise on the subject, also building on its experience in coastal and terrestrial areas.
According to Article 14 (1) of the CBD, “each
Contracting Party, as far as possible and as appropriate, shall: (a) introduce appropriate procedures
requiring environmental impact assessments of its
proposed projects that are likely to have significant
adverse effects on biological diversity with a view to
avoiding or minimising such effects and, where appropriate, allow for public participation in such procedures; (b) introduce appropriate arrangements to
ensure that the environmental consequences of its
programmes and policies that are likely to have significant adverse impacts on biological diversity are
duly taken into account; (c) promote, on the basis
of reciprocity, notification, exchange of information
and consultation on activities under their jurisdiction or control which are likely to significantly affect adversely the biological diversity of other States
or areas beyond the limits of national jurisdiction,
by encouraging the conclusion of bilateral, regional
or multilateral arrangements, as appropriate(…)”.
This requirement applies in areas under the
jurisdiction of the Contracting Parties and in
ABNJ, where the CBD applies “in the case of processes and activities, regardless of where their effects
occur, carried out under [the jurisdiction or control
of each Contracting Party] within the area of its national jurisdiction or beyond the limits of national
jurisdiction”.43 To help Contracting Parties implement this requirement, Voluntary Guidelines on
biodiversity-inclusive impact assessment and guidance on biodiversity-inclusive SEAs were endorsed
in 2006.44
In 2008, Contracting Parties to the CBD took
the decision to convene an expert workshop “to
discuss scientific and technical aspects relevant to
environmental impact assessment in areas beyond
national jurisdiction with a view to contributing
42. This is particularly striking for the process leading to
the description and identification of Ecologically or
Biologically Significant Marine Areas (EBSAs). See
Druel E. (2012), “Ecologically or Biologically Significant Marine Areas (EBSAs): the identification process
under the Convention on Biological Diversity (CBD)
and possible ways forward”, Working Paper N°17/12,
IDDRI, Paris, France, 24p.
43. Article 4 (b) of the CBD.
44. CBD COP 8, Decision VIII/28: Voluntary Guidelines on
biodiversity-inclusive impact assessment.
16
to the development of such scientific and technical
guidance, building on ongoing relevant sectoral,
regional and national environmental impact assessment efforts”.45 The expert workshop on scientific
and technical aspects relevant to EIAs in marine areas beyond national jurisdiction (the Manila workshop) took place in November 2009.46 Two main
issues were discussed by the participants: (i) the
key scientific elements that should be considered
in developing scientific and technical guidance for
EIAs and SEAs in ABNJ, and (ii) the gaps in the
CBD 2006 Voluntary Guidelines and additional
guidance on SEAs. During the workshop, EIA and
SEA issues were considered separately (see boxes 2
and 3).
Taking these differences into consideration, the
participants also emphasised that the Voluntary
Guidelines contained a number of gaps when it
came to applying them to EIAs in ABNJ. Most notably, they underlined the need to adapt this instrument so that it can be appropriate for ecosystems
in ABNJ and to develop global and regional standards for the notion of “acceptable perturbation”.
As the report of the workshop notes, “although
there is a policy aspect to acceptable, there is an important role for scientific and technical information
on consequences of perturbations and recovery potential of these ecosystems, in informing the policy
decisions”.47 The report finally includes some recommendations on elements that should be incorporated into the 2006 Guidelines in order to adapt
them to the specific case of ABNJ.
In 2010, in Nagoya, Contracting Parties to the
CBD welcomed the report of the Manila workshop and requested the Executive Secretary of
the CBD to facilitate the development of voluntary guidelines for the consideration of biodiversity in EIAs and SEAs in marine and coastal
areas, recognising at the same time “that these
guidelines would be most useful for activities that
are currently unregulated with no process of assessing impacts”.48 A draft of the revised guidelines and
guidance was circulated for technical peer-review
in 2011 and 2012, and a final version of the text
was presented for consideration at the 11th meeting of the Contracting Parties to the CBD, held in
45. CBD COP 9, Decision IX/20 on Marine and Coastal biodiversity, §10.
46. For a full report of the workshop, see document UNEP/
CBD/EW-EIAMA/2 of 20 November 2009.
47.UNEP/CBD/EW-EIAMA/2 of 20 November 2009,
“Report of the expert workshop on scientific and technical aspects relevant to environmental impact assessment
in marine areas beyond national jurisdiction”, p.13.
48. CBD COP 10, Decision X/29 on Marine and Coastal Biodiversity, § 50 and 51.
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The other part of the Manila workshop was devoted to SEAs in
ABNJ. Participants recognised that “SEAs allow the management
of activities of multiple users of ocean space to be coordinated
into an integrated management plan for a region or subregion.
Such plans can be formulated to maintain species, habitats and
ecosystem structure in space and time over the full water column down to and including the seabed and the subsoil thereof
with regard to individual and cumulative impacts by users and
in relation to natural environmental change”.1 The need to provide additional specific guidance for SEAs conducted in ABNJ was
also emphasised, such as the identification of direct and indirect
drivers of biophysical changes and non-biophysical changes for
the application of SEAs in ABNJ. In addition, several potential elements which could be contained in an SEA report concerning ABNJ
were identified and included:
“- The contents and the main objectives of the plan, programme
or policy;
- The relevant aspects of the current state of the environment
and the likely evolution thereof should the plan or programme not
be implemented;
- The characteristics of the environment in areas likely to be
significantly affected;
- The environmental issues being addressed by the plan, programme or policy;
- The environmental objectives established at international,
regional, national and other levels which are relevant to the plan
or programme, including the conservation of marine biodiversity
beyond national jurisdiction, and the ways in which these objectives and other environmental considerations have been taken into
account during its preparation;
- The likely significant environmental effects on marine biodiversity in areas beyond national jurisdiction of implementing the
plan, programme or policy and its reasonable alternatives;
- The likely significant environmental effects of plans, programmes and policies within national jurisdiction in the same
general region as marine biodiversity in ABNJ and vice-versa;
- Measures to prevent, reduce or mitigate any significant
adverse effects on marine biodiversity beyond national jurisdiction
which may result from the implementation of the plan, programme
or policy;
- Factors which will trigger a new SEA or EIA of an activity;
- An outline of how the assessment was undertaken, including difficulties encountered in providing the information to be
included, such as technical, deficiencies or lack of knowledge;
- Potential strategies for filling gaps in knowledge;
- Measures envisaged for monitoring environmental effects
of the plan, programme or policy on marine biodiversity beyond
national jurisdiction”.2
1.
2.
Box 3. Conclusions of the Manila workshop
with respect to SEAs in ABNJ
Ibid, p.
44.
Ibid, p.48.
October 2012 in Hyderabad, India. The Conference
of the Parties took note “of the voluntary guidelines
for the consideration of biodiversity in environmental impact assessments and strategic environmental
assessment annotated specifically for biodiversity in
marine and coastal areas including in areas beyond
national jurisdiction, in accordance with Article 4 of
the Convention, recognising that these annotated voluntary guidelines would be most useful for activities
that are currently unregulated, with no procedures
for assessing impacts” and requested “the Executive
Secretary to make the voluntary guidelines referred
to in paragraph 1 above available as a reference for
Parties, other Governments and United Nations specialised agencies, as well as relevant United Nations
General Assembly processes (i.e. the United Nations
Ad-hoc Open-Ended Informal Working Group to
Study Issues Relating to the Conservation and Sustainable Use of Marine Biodiversity Beyond Areas of
National Jurisdiction)”.49 The events that will en-
sue once the Guidelines have been received by the
UNGA will no doubt raise some interesting questions related to the links between this assembly
and the CBD on the question of the conservation
and sustainable use of marine biodiversity in areas beyond national jurisdiction. As of today, it is
extremely difficult to predict in which ways this
transmission will influence (if it does) the current
debate within the BBNJ Working Group.
In the Guidelines, the CBD has defined more or
less the same procedural steps for the conduct of
EIAs in the marine and coastal environment as the
ones defined by the IAIA50: screening, scoping, assessment and evaluation of impacts and development of alternatives (a step which encompasses
the examination of alternative to the project, impact analysis, mitigation and impact management
and the evaluation of significance steps defined by
the IAIA), reporting of the EIS or EIA report, review of the EIS, decision-making and monitoring,
49. CBD COP 11, Decision XI/18 on Marine and Coastal Biodiversity, § B1. and 2
50. See §2.1 of the study.
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17
Environmental impact assessments in areas beyond national jurisdiction
compliance, enforcement and environmental auditing. Although the Guidelines as a voluntary instrument developed under the CBD provide mostly
scientific and technical guidance, they have also
indirectly highlighted certain governance issues.
The repartition of the responsibilities in ABNJ between the flag State and competent international
organisations at the various stages of the EIA process is rather unclear. The definition of stakeholders and the process to provide information to the
civil society might be extremely different to that of
coastal and terrestrial areas.
Interestingly, at the screening stage of the EIA
process, the Guidelines are providing for some
linkages with other international processes in respect of the protection of marine biodiversity in
ABNJ. The text identifies four types of screening
mechanisms: (i) positive lists identifying projects
requiring EIA (akin to what is done under the Espoo Convention and its Kiev Protocol), (ii) lists
identifying geographical areas where important
biodiversity is found and hence where projects
would require an EIA (and the text suggests using
the Ecologically or Biologically Significant Marine
Area (EBSA) criteria developed by the CBD51 as
well as the Vulnerable Marine Ecosystem (VME)
criteria developed by the FAO), (iii) expert judgment and (iv) a combination of positive and areas
lists plus expert judgment to determine the need
for an EIA.
2.2.2. Regional instruments
Within regional frameworks, specific obligations
with respect to EIAs in ABNJ have been developed.
This happened in the particular context of the UNEP
regional seas framework, but also in the polar regions:
in the Southern Ocean, a fairly well-advanced system
applies through the Antarctic Treaty and subsequent
instruments, whereas a rather ad-hoc instrument has
been developed for the Arctic.
2.2.2.1. Regional seas conventions
Only a few regional seas programmes have
included ABNJ in their geographic scope.52 As
of today, the instruments concerned include:
51. On the CBD EBSA process, see Druel E. (2012), “Ecologically or Biologically Significant Marine Areas (EBSAs):
the identification process under the Convention on
Biological Diversity (CBD) and possible ways forward”,
Working Paper N°17/12, IDDRI, 24p.
52. See Druel E., Ricard P., Rochette J., Martinez C. (2012),
“Governance of marine biodiversity in areas beyond
national jurisdiction at the regional level: filling the
gaps and strengthening the framework for action. Case
studies from the North-East Atlantic, Southern Ocean,
Western Indian Ocean, South West Pacific and the Sargasso Sea”, Studies N° 04/12, IDDRI and AAMP, Paris,
France, 102p.
18
the Convention for the Protection of the Marine
Environment of the North-East Atlantic, or OSPAR
Convention; the Convention for the Protection of
the Marine Environment and the Coastal Region of
the Mediterranean, or Barcelona Convention, and
the Convention for the Protection of the Natural
Resources and Environment of the South Pacific
Region, or SPREP Convention.53
As noted by the CBD in 200954, detailed prescriptions with respect to the content of EIAs are
generally not incorporated into the text of the
regional seas conventions, as this is left to the responsibility of their Contracting parties. This is
particularly true for the OSPAR Convention, as
this agreement does not make specific reference
to EIAs. Its Article 2 (1) makes the general statement that its Contracting Parties “shall take the
necessary measures to protect the maritime area
against the adverse effects of human activities so as
to safeguard human health and to conserve marine
ecosystems”. In addition, according to its Annex V
on the Protection and Conservation of the Ecosystems and Biological Diversity of the Maritime
Area, the OSPAR Commission has the duty “to develop means, consistent with international law, for
instituting protective, conservation, restorative or
precautionary measures related to specific areas or
sites or related to particular species or habitats”.55
With respect to EIAs and SEAs in ABNJ, several
decisions and recommendations adopted in the
framework of the OSPAR Commission are relevant.56
53. The Convention for the Conservation of Antarctic
Marine Living Resources (CCAMLR), which is the competent convention dealing with the conservation and
rational use of the marine living resources of the Southern Ocean, is discussed in § 2.2.2.2. On the legal and
institutional framework in the ABNJ of the NorthEast Atlantic and of the South West Pacific Region, see
Druel E., Ricard P., Rochette J., Martinez C. (2012),
“Governance of marine biodiversity in areas beyond
national jurisdiction at the regional level: filling the
gaps and strengthening the framework for action. Case
studies from the North-East Atlantic, Southern Ocean,
Western Indian Ocean, South West Pacific and the Sargasso Sea”, Studies N° 04/12, IDDRI and AAMP, Paris,
France, 102p.
54. See document UNEP/CBD/EW-EIAMA/1/INF/1 of 6
November 2009, “Background document to an expert
workshop on scientific and technical aspects relevant
to environmental impact assessment in marine areas
beyond national jurisdiction – Part I: Review of
scientific and technical aspects of global, regional and
national environmental impact assessment frameworks
and their relevance to marine areas beyond national
jurisdiction”, §39.
55. Article 3 (1) (b) (ii) of Annex V of the OSPAR Convention on the Protection and Conservation of the Ecosystems and Biological Diversity of the Maritime Area.
56. Development of EIAs and SEAs requirements in the
OSPAR Commission context was certainly facilitated
by the fact that the vast majority of Contracting Par-
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Environmental impact assessments in areas beyond national jurisdiction
Figure 1. Simplified UNEP flow chart for the EIA procedure
Request for authorization
of a project submitted
to A.A. by the applicant
Need for EIA (to be) considered
by A.A. and E.A.
YES
NO
E.A. prepares guidelines for EIA document
and communicates them to the applicant
Decision by A.A. to approve or reject the
project without EIA document
Preparation of EIA document and its
submission to E.A.
Input from general public or professional
organisations
Evaluation of EIA document by E.A. and
recommendation to A.A.
Participation of general public or
professional organisations
Decision of A.A about the project
Political, social and economic
considerations
Applicant requested to modify project or EIA
document and to resubmit it for evaluation
Applicant informed that project rejected
Applicant informed that project and EIA
document as part of it approved
Monitoring of the project’s impact by E.A.
Re-evaluation of the assessment by E.A.
and A.A.
A.A. = Authorizing Authority
E.A. = Environmental Authority
Source: UNEP (1990), “An approach to environmental impact assessment for project affecting the coastal and marine environment”, Regional Seas Reports and
Studies, No 122, p. 13.
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19
Environmental impact assessments in areas beyond national jurisdiction
For example, in 2008, OSPAR Contracting Parties adopted a Code of Conduct for Responsible
Marine Research in the Deep-Seas and High
Seas of the OSPAR Maritime Area57, according to
which “when assessing research plans, Contracting
Parties are encouraged to ensure that the granting
of research funds and ship time should be contingent on the application of the code of conduct”. In
addition, “if research is planned in an area that
contains features on the OSPAR list of threatened
and/or declining species and habitats, a risk assessment should be completed before equipment that
may have adverse effects is deployed and, where
appropriate, a pre-assessment of the site should be
conducted to determine possible impacts and suitable mitigation measures. If necessary, the operator should consider modifying equipment and/or
approaches to be employed in order to reduce risks
to an acceptable level”.58 The particular attention
which must be paid to threatened and/or declining species and habitats found in the OSPAR list
with respect to activities planned in areas where
they might occur is found again in a 2010 Recommendation which provides that “when assessments
of environmental impacts of human activities that
may affect the marine environment of the OSPAR
maritime area are prepared, Contracting Parties
should ensure they take account of the relevant species and habitats on the OSPAR List of threatened
and/or declining species and habitats”.59 On a different subject, recommendations adopted for
the management of the 7 OSPAR MPAs established in the high seas and in ABNJ call upon
Contracting Parties to “ensure, where appropriate,
ties to the OSPAR Convention are EU Member States
and that specific requirements on EIAs and SEAs were
developed at the EU level through two Directives
(Council Directive 85/337/EEC of 27 June 1985 on the
assessment of the effects of certain public and private
projects on the environment, amended in 1997, 2003
and 2009 and codified in Directive 2011/92/EU of the
European Parliament and the Council; and Directive
2001/42/EC of the European Parliament and the Council on the assessment of the effects of certain plans and
programmes on the environment). Although these
directives contain provisions on EIAs and SEAs in a
transboundary context, they are limited in their scope
to potential impacts on territories in other Member
States and do not include ABNJ.
57. OSPAR 2008-1, OSPAR Code of Conduct for Responsible Marine Research in the Deep-Seas and High Seas of
the OSPAR Maritime Area. Adopted in the OSPAR category of “other agreements”, this Code of Conduct is not
legally binding.
58. OSPAR Code of Conduct for Responsible Marine
Research in the Deep-Seas and High Seas of the OSPAR
Maritime Area, § 10 and 18.
59. OSPAR Recommendation 2010/5 on assessments of
environmental impacts in relation to threatened and/
or declining species and habitats.
20
that a human activity in the (…) MPA, or any measure outside the area that may be potentially conflicting with the conservation objectives of the (…) MPA
is subjected to an Environmental Impact Assessment
(EIA) or Strategic Environmental Assessment (SEA)
and that appropriate measures are taken, taking
into account relevant OSPAR or other international
standards and guidelines for the specific activity under consideration”.60
The SPREP Convention applies to areas under
national jurisdiction and to four high seas pockets enclosed in the EEZ of South West Pacific
countries. In the Convention area, Contracting
Parties shall, within their capabilities, “assess the
potential effects of [major projects] on the marine
environment, so that appropriate measures can be
taken to prevent any substantial pollution of, or
significant and harmful changes within the Convention Area”.61 The Convention further stipulates that Contracting Parties should invite public comment and consult those Parties that might
be affected when conducting their EIAs and to
communicate their results to the SPREP Convention Secretariat.62 Similar explicit requirements
also apply in the Mediterranean where, according to the Barcelona Convention, Contracting
Parties shall “undertake environmental impact
assessment for proposed activities that are likely to
cause a significant adverse impact on the marine
environment and are subject to an authorisation
by competent national authorities” and “promote
cooperation between and among States in environmental impact assessment procedures related
to activities under their jurisdiction or control
which are likely to have a significant adverse effect on the marine environment of other States or
areas beyond the limits of national jurisdiction”.63
Interestingly, the Barcelona Convention makes
an explicit reference to ABNJ and uses the
well-established notion of Significant Adverse
60. For example, see OSPAR Recommendation 2010/12
on the Management of the Milne Seamount Complex Marine Protected Area, § 3.3.4 (b). The list provided here of the decisions, recommendations and
other agreements adopted by OSPAR that contain EIA
requirements is far from complete, as there are so many
that incorporate these requirements or make reference
to the EU Directives on the subject. The OSPAR Guidelines on Best Environmental Practice (BEP) in Cable
Laying and Operation (OSPAR Agreement 2012-2) provide for example for a list of minimum requirements
that an EIA conducted in this context must contain and
discuss the monitoring and assessment phase and the
access to data.
61. Article 16 (2) of the SPREP Convention.
62. Article 16 (3) of the SPREP Convention.
63. Article 4 (3) (c) and (d) of the Barcelona Convention.
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Environmental impact assessments in areas beyond national jurisdiction
Impacts (SAIs) as a threshold to determine
the need for an EIA.
In a 1990 study, UNEP provided a simplified flow
chart for the EIA procedure in the context of the
regional seas programmes (see Figure 1).
2.2.2.2. The Antarctic regional framework
The Antarctic Treaty (AT), adopted in 1959 and
entered into force in 1961, “freezes” all territorial
claims in the Antarctic continent and therefore,
all its surrounding waters are considered as being
high seas.64 In this framework, Contracting Parties
to the AT adopted, in 1991, a Protocol on Environmental Protection to the Antarctic Treaty (the
Madrid Protocol) which subsequently entered
into force in 1998. According to the Protocol, “activities in the Antarctic Treaty area shall be planned
and conducted so as to avoid: (i) adverse effects
on climate or weather patterns; (ii) significant
adverse effects on air or water quality; (iii) significant changes in the atmospheric, terrestrial (including aquatic) glacial or marine environments; (iv)
detrimental changes in the distribution of species of
fauna and flora; (v) further jeopardy to endangered
or threatened species or populations of such species;
or (vi) degradation of, or substantial risk to, areas of
biological, scientific, historic, aesthetic or wilderness
significance”.65 Article 8 of this instrument imposes
the obligation on its Contracting Parties to
carry out EIAs for their activities in the AT area.
It states that for all activities conducted in the AT
area except whaling, hunting of seals, fishing and
emergency operations, a prior assessment of the
impact of those activities on the Antarctic Environment or on dependent or associated ecosystems
should be conducted “according to whether those
activities are identified as having: (a) less than a
minor or transitory impact; (b) a minor or transitory impact; or (c) more than a minor or transitory impact”.66 It further adds that “the assessment
procedures set out in Annex I shall apply to any
change in an activity whether the change arises from
an increase or decrease in the intensity of an existing
activity, from the addition of an activity, the decommissioning of a facility, or otherwise”.67
64. On the Antarctic Treaty System regime with respect to
the high seas, see Druel E., Ricard P., Rochette J., Martinez C. (2012), “Governance of marine biodiversity
in areas beyond national jurisdiction at the regional
level: filling the gaps and strengthening the framework
for action. Case studies from the North-East Atlantic,
Southern Ocean, Western Indian Ocean, South West
Pacific and the Sargasso Sea”, Studies N° 04/12, IDDRI,
and AAMP, Paris, France, pp. 30-49.
65. Article 3 (2) (b) of the Madrid Protocol.
66. Article 8 (1) of the Madrid Protocol.
67 Article 8 (3) of the Madrid Protocol.
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The AT EIA process is therefore rather complex,
as there is a gradient identified for the impact of
activities covered by the obligation described in
Article 8 of the Madrid Protocol (the minor or
transitory impact). Annex I to this Protocol on EIA
further specifies the process and highlights three
different steps. The first is the preliminary stage
where national competent authorities consider if a
proposed activity is likely to have less than a minor
or transitory impact, and if so, authorise it to proceed forthwith.68 Then, if an activity is determined
as having at least a minor or transitory impact, it is
subjected to an Initial Environmental Evaluation,
which might help to assess whether the activity
concerned may have more than a minor or transitory impact. The Initial Environmental Evaluation
shall include “(a) a description of the proposed activity, including its purpose, location, duration and
intensity; and (b) consideration of alternatives to
the proposed activity and any impacts that the activity may have, including consideration of cumulative
impacts in the light of existing and known planned
activities. If an Initial Environmental Evaluation indicates that a proposed activity is likely to have no
more than a minor or transitory impact, the activity
may proceed, provided that appropriate procedures,
which may include monitoring, are put in place to
assess and verify the impact of the activity”.69 All
these steps are dealt with by the competent national authorities of the nationals undertaking the
proposed activities in the AT area.
International scrutiny is only provided when it
is determined that a proposed activity is likely to
have more than a minor or transitory impact. In
this case, a Comprehensive Environmental Evaluation must be conducted, which should contain the
following more detailed information:
“ (a) a description of the proposed activity including its purpose, location, duration, and intensity,
and possible alternatives to the activity, including
the alternative of not proceeding, and the consequences of those alternatives;
(b) a description of the initial environmental reference state with which predicted changes are to be
compared and a prediction of the future environmental reference state in the absence of the proposed
activity;
(c) a description of the methods and data used to
forecast the impacts of the proposed activity;
(d) estimation of the nature, extent, duration and
intensity of the likely direct impacts of the proposed
activity;
68. Article 1 of Annex I to the Madrid Protocol on the Preliminary Stage.
69. Article 2 of Annex I to the Madrid Protocol on Initial
Environmental Evaluation.
21
Environmental impact assessments in areas beyond national jurisdiction
(e) consideration of possible indirect or second order impacts of the proposed activity;
(f) consideration of cumulative impacts of the proposed activity in the light of existing activities and
other known planned activities;
(g) identification of measures, including monitoring programmes, that could be taken to minimise or
mitigate impacts of the proposed activity and to detect unforeseen impacts and that could provide early
warning of any adverse effects of the activity as well
as to deal promptly and effectively with accidents;
(h) identification of unavoidable impacts of the
proposed activity;
(i) consideration of the effects of the proposed activity on the conduct of scientific research and on
other existing uses and values;
(j) an identification of gaps in knowledge and uncertainties encountered in compiling the information required under this paragraph;
(k) a non technical summary of the information
provided under this paragraph; and
(l) the name and address of the person or organisation which prepared the Comprehensive Environmental Evaluation and the address to which comments thereon should be directed”. 70
After the draft Comprehensive Environmental
Evaluation has been completed, made publicly
available and circulated for comments to all Contracting Parties, it is reviewed by the Committee
for Environmental Protection to the Antarctic
Treaty (CEP) which provides advice to the Antarctic Treaty Consultative Meeting (ATCM) on
whether to proceed or not with the proposed activity. The ATCM is responsible for the adoption
of the final decision in this respect. Its Secretariat
maintains a public database with information on
EIAs conducted in the AT area.71
The EIA system developed within the AT has
very often received praised for being one of the
most developed regional systems applicable to
the marine environment (although it is rather
limited in its extent because whaling, sealing and
fishing are not concerned by the procedures established under the Madrid Protocol). However, it is
increasingly the subject of criticism due to a number of weaknesses. A 2011 article on the need for
SEAs in Antarctica noted that “typically, the decision to conduct an activity and the activity’s characteristics, timing and location precede the initiation of EIA. Project-specific EIA processes generally
commence after many decisions have (albeit often
informally) in fact already been taken, alternatives
discounted and a sense of inevitability inculcated in
70. Article 3 of Annex I to the Madrid Protocol on Comprehensive Environmental Evaluation.
71.See http://www.ats.aq/devAS/ep_eia_list.aspx?lang=e.
22
participants to the process (…) The consideration
of alternatives to the proposed activity is generally
a pro-forma component of the EIA document rather
than a serious consideration of the process”.72 The
paper also highlights the difficulty in assessing
the cumulative impacts of activities in the AT EIA
context, especially as a certain number of marine
activities are excluded from the scope of Annex I to
the Madrid Protocol.
2.2.2.3. The Arctic guidelines
The regional institutional framework in the Arctic
is rather different to that of the Antarctic and is
far from being as developed. However, it was felt
that due to the sensitivity of this area, specific
guidance should be adopted on the conduct of
EIAs. Guidelines for Arctic EIAs were therefore
adopted by the ministers of the Arctic countries
in 1997.73 According to these Guidelines, “EIA
should be applied to activities associated with the
exploitation of both renewable and non-renewable
natural resources, public use, military activities
and the development of infrastructure for different
purposes that may cause significant environmental
impacts”.74
Although the Guidelines take into consideration
the transboundary impacts of activities subject to
EIA requirements, noting that this would be particularly useful in the case of the development of
oil and gas resources, large-scale hydroelectric
projects and extensive mining and smelter work,
they do not apply to ABNJ. As for the Espoo Convention and the Kiev Protocol, they only take into
consideration transboundary impacts in as much
as these might occur in the area under the jurisdiction of another country, therefore leaving sensitive and rather unknown parts of the Arctic Ocean
unregulated.
2.2.3. Sector-specific instruments
The development of human activities far from the
coasts and the attention given by the international
community to their related impacts has led to
the adoption of a number of regulations on EIAs
within sectors. Two of the sectors concerned are
72. See Roura R. and Hemmings A. (2011), “Realising Strategic Environmental Assessment in Antarctica”, Journal of Environmental Assessment Policy and Management Vol. 13, No. 3, p. 495.
73. Countries that are members of the Arctic Council are:
Canada, Denmark (also representing the Faroe Islands
and Greenland), Finland, Iceland, Norway, the Russian
Federation, Sweden and the USA. The 1997 Alta Declaration is available here: http://library.arcticportal.
org/1271/1/The_Alta_Declaration.pdf.
74. Guidelines for Environmental Impact Assessment (EIA)
in the Arctic – Arctic Environmental Protection Strategy, p. 11.
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Environmental impact assessments in areas beyond national jurisdiction
emblematic, as they have raised for a long time
many concerns within the international community on the issue of the conservation of marine
biodiversity in ABNJ: deep-sea fisheries and
seabed mining in the Area. Dumping of waste is
a rather ancient concern, now regulated through
a specific instrument, whereas ocean fertilisation
and more broadly geo-engineering can be seen as
an emerging issue.
2.2.3.1. Fisheries
EIAs for fisheries were mentioned in the 1995
Agreement for the implementation of the provisions of the United Nations Convention on the
Law of the Sea of 10 December 1982 relating to
the conservation and management of straddling
fish stocks and highly migratory fish stocks, also
known as the United Nations Fish Stocks Agreement (UNFSA). According to its Article 5 (d),
coastal States and States fishing on the high seas
shall “assess the impacts of fishing, other human activities and environmental factors on target stocks and
species belonging to the same ecosystem or associated
with or dependent upon the target stocks”. When it
comes to the implementation of the precautionary
approach, the UNFSA further emphasises that
States shall “develop data collection and research
programmes to assess the impact of fishing on nontarget and associated or dependent species and their
environment, and adopt plans which are necessary to
ensure the conservation of such species and to protect
habitats of special concern”.75
Although these provisions concerned highly
migratory and straddling fish stocks, the most
recent developments in respect of EIAs for
fisheries were related to deep-sea fisheries.
Following several years of international debate
on the issue, in 2006 the UNGA adopted a resolution on sustainable fisheries which included
several provisions related to bottom fishing and
to EIAs for these fisheries. Notably, it called upon
Regional Fisheries Management Organisations or
Arrangements (RFMOs and RFMAs) “to assess, on
the basis of the best available scientific information,
whether individual bottom fishing activities would
have significant adverse impacts on vulnerable marine ecosystems and to ensure that if it is assessed
that these activities would have significant adverse
impacts, they are managed to prevent such impacts
or not authorised to proceed”.76 The Resolution fur75. Article 6 (3) (d) of the UNFSA.
76. UNGA Resolution 61/105 of 8 December 2006, Sustainable fisheries including through the 1995 Agreement
for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management
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ther specifies that flag States should either adopt
and implement the measures listed in it, including
the specific measure on EIAs, “or cease to authorise fishing vessels flying their flag to conduct bottom
fisheries in areas beyond national jurisdiction where
there is no regional fisheries management organisation or arrangement” or interim measures in place,
and this until such measures are adopted.77
After the adoption of this Resolution, the Food
and Agriculture Organisation of the United Nations (FAO) issued the International Guidelines
for the Management of Deep-Sea Fisheries in
the High Seas, a voluntary instrument which was
adopted on 29 August 2008, following a series of
technical consultations.78 They detail the obligations of flag States and RFMOs/As to conduct EIAs
for their deep-sea fishing activities likely to produce significant adverse impacts in a given area. In
particular, such EIAs should address:
“(i) type(s) of fishing conducted or contemplated,
including vessels and gear types, fishing areas, target and potential bycatch species, fishing effort levels
and duration of fishing (harvesting plan);
(ii) best available scientific and technical information on the current state of fishery resources and
baseline information on the ecosystems, habitats
and communities in the fishing area, against which
future changes are to be compared;
(iii) identification, description and mapping of
VMEs [Vulnerable Marine Ecosystems]79 known or
likely to occur in the fishing area;
(iv) data and methods used to identify, describe
and assess the impacts of the activity, the identification of gaps in knowledge and an evaluation of
uncertainties in the information presented in the
assessment;
(v) identification, description and evaluation of
the occurrence, scale and duration of likely impacts,
including cumulative impacts of activities covered
by the assessment on VMEs and low productivity
fishery resources in the fishing area;
of Straddling Fish Stocks and Highly Migratory Fish
Stocks, and related instruments, §83 (a).
77. UNGA Resolution 61/105 of 8 December 2006, Sustainable fisheries including through the 1995 Agreement
for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management
of Straddling Fish Stocks and Highly Migratory Fish
Stocks, and related instruments, §86.
78. International Guidelines for the Management of DeepSea Fisheries in the High Seas, Rome, FAO, 2009, 73p.
79. The FAO International Guidelines determine a number
of characteristics which should be used as criteria
to identify VMEs: uniqueness or rarity; functional
significance of the habitat; fragility; life-history traits
of component species that make recovery difficult; and
structural complexity.
23
Environmental impact assessments in areas beyond national jurisdiction
(vi) risk assessment of likely impacts by the fishing
operations to determine which impacts are likely to
be significant adverse impacts, particularly impacts
on VMEs and low-productivity fishery resources;
and
(vii) the proposed mitigation and management
measures to be used to prevent significant adverse
impacts on VMEs and ensure long-term conservation
and sustainable utilisation of low-productivity fishery resources, and the measures to be used to monitor effects of the fishing operations”. 80
One of the most interesting aspects of the
Guidelines is the definition they provide for the
notion of “significant adverse impacts” (SAIs).
Although very often used as a threshold to determine the need to carry out an EIA, this notion
is not frequently defined in a precise manner. In
this respect, the Guidelines defines SAIs as “those
that compromise ecosystem integrity (i.e. ecosystem
structure or function) in a manner that: (i) impairs
the ability of affected populations to replace themselves; (ii) degrades the long-term natural productivity of habitats; or (iii) causes, on more than
a temporary basis, significant loss of species richness, habitat or community types. Impacts should
be evaluated individually, in combination and
cumulatively”.81 According to the Guidelines, six
factors must be considered when determining the
scale and significance of an impact: “(i) the intensity or severity of the impact at the specific site being
affected; (ii) the spatial extent of the impact relative
to the availability of the habitat type affected; (iii)
the sensitivity/vulnerability of the ecosystem to the
impact; (iv) the ability of an ecosystem to recover
from harm, and the rate of such recovery; (v) the
extent to which ecosystem functions may be altered
by the impact; and (vi) the timing and duration of
the impact relative to the period in which a species
needs the habitat during one or more of its life-history stages”.82 Guidance is also provided on how to
determine the temporary nature of an impact.83
Results of the assessments carried out by States
should be transmitted to the competent RFMO/A
and then to the FAO, or directly to the FAO if a
RFMO/A does not exist in the fishing area concerned, and then made publicly available.84 If an
80. International Guidelines for the Management of DeepSea Fisheries in the High Seas, § 47.
81. International Guidelines for the Management of DeepSea Fisheries in the High Seas, § 17.
82. International Guidelines for the Management of DeepSea Fisheries in the High Seas, § 18.
83. International Guidelines for the Management of DeepSea Fisheries in the High Seas, § 19 and 20.
84. International Guidelines for the Management of DeepSea Fisheries in the High Seas, § 51 and 52.
24
RFMO/A is in place, it should develop a mechanism to review the assessments and provide evaluation and advice on whether the fishing activities
concerned would have SAIs on VMEs and whether
mitigation measures would prevent such SAIs.85
Eventually, the aim of the assessments would be
to provide a basis for the adoption of conservation
and management measures to achieve long-term
conservation and sustainable use of deep-sea fish
stocks, ensuring adequate protection and preventing SAIs on VMEs.86 It is further indicated that
States and RFMOs/As should ensure that fishing
activities are managed in such a way that they prevent SAIs on VMEs or elsewhere, and that they do
not grant authorisation to such activities.87 When
it is impossible to determine the presence of VMEs
in a given area or the likelihood that fishing activities would cause SAIs on VMEs, fishing activities
can nevertheless be authorised by States in accordance with precautionary conservation and management measures, a protocol for encounters with
VMEs and measures to reduce uncertainty.88 This
last paragraph is controversial because some argue
that in the absence of certainty with respect to the
presence of VMEs or the likelihood of an SAI, then
no fishing activities should be authorised at all.89
In 2009, following the adoption of the Guidelines, the UNGA called upon RFMOs/As and States
to “conduct the assessments called for in paragraph
83 (a) of Resolution 61/105 consistent with the
Guidelines, and ensure that vessels do not engage in
bottom fishing until such assessments have been carried out”.90
Although detailed requirements exist with
85. International Guidelines for the Management of DeepSea Fisheries in the High Seas, § 50.
86. International Guidelines for the Management of DeepSea Fisheries in the High Seas, § 70.
87. International Guidelines for the Management of DeepSea Fisheries in the High Seas, § 73.
88. International Guidelines for the Management of DeepSea Fisheries in the High Seas, § 74.
89. See Weaver P.P.E et al., (2011), “The impact of deepsea fisheries and implementation of the UNGA Resolutions 61/105 and 64/72. Report of an international
scientific workshop”, National Oceanography Centre, Southampton, p. 13: “where there are substantial
uncertainties regarding the existence of VMEs in an
area, or whether fishing in the area would cause significant adverse impacts to VMEs, or the long-term sustainability of deep-sea fish stocks (in particular rare
and/or endangered species), fishing should not be permitted until such uncertainties are resolved”.
90. UNGA Resolution 64/72 of 4 December 2009, Sustainable fisheries, including through the 1995 Agreement
for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management
of Straddling Fish Stocks and Highly Migratory Fish
Stocks, and related instruments, § 119 (a).
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Environmental impact assessments in areas beyond national jurisdiction
respect to the conduct of EIAs for deep-sea
fisheries, several concerns were raised with
respect to their effective implementation.91 Although the coverage of ABNJ by RFMOs with a
mandate to regulate deep-sea fisheries is extending, it is still not complete, with areas in the Atlantic, Pacific and Arctic oceans still not covered
by such instruments. In the Southern Ocean, all
States engaged in bottom longline fishing must
submit EIAs that are subject to a review by the
Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), the competent
RFMO in charge of the management of fishing in
the area. On the opposite side, RFMOs located in
the North-Atlantic (the North-East Atlantic Fisheries Commission (NEAFC) and the Northwest Atlantic Fisheries Organisation (NAFO)) and in the
Southeast Atlantic (the South East Atlantic Fisheries Organisation (SEAFO)) only require impact assessments in new fishing areas or when new scientific information becomes available, and no such
information has been publicised so far. As noted
by the Deep Sea Conservation Coalition (DSCC),
“the argument that existing or historically fished areas do not need to be subject to impact assessments
is often based on the false assumption that in areas
where extensive bottom trawl fishing has occurred
in the past, any VME that may have existed in such
areas have already been destroyed. Again, there is
ample scientific information indicating that while
in some areas where VMEs occur and bottom trawling has occurred, the VMEs have been obliterated
by intensive trawling, in other areas where VMEs
such as cold-water coral reefs have been damaged by
bottom-trawling, substantial portions of the VME’s
reefs still remain intact”.92
In the North Pacific, major deep-sea fishing
States have conducted impact assessments which
91. The following two paragraphs are based on a report prepared by the Deep-Sea Conservation Coalition (DSCC):
Gianni M., Currie D.E.J., Fuller S., Speer L., Ardron J.,
Weeber B., Gibson M., Roberts G., Sack K., Owen S.,
Kavanagh A. (2011), “Unfinished business: a review of
the implementation of the provisions of UNGA resolutions 61/105 and 64/72 related to the management
of bottom fisheries in areas beyond national jurisdiction”, Deep Sea Conservation Coalition, 53p., and on a
presentation on environmental impact assessments in
deep-sea fisheries in the high seas made by Mr.Gianni
on 2 October 2012 on the occasion of the second meeting of the French informal working group on high seas
organised jointly by IDDRI and the French Marine Protected Areas Agency.
92. Gianni M., Currie D.E.J., Fuller S., Speer L., Ardron J.,
Weeber B., Gibson M., Roberts G., Sack K., Owen S.,
Kavanagh A. (2011), “Unfinished business: a review of
the implementation of the provisions of UNGA resolutions 61/105 and 64/72 related to the management of
bottom fisheries in areas beyond national jurisdiction”,
Deep Sea Conservation Coalition, p.40.
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all highlighted a number of gaps. For example, “the
impact assessment report from Japan also concluded it is difficult to assess the impacts of bottom fishing on the fragility of ecosystems formed by corals,
due to lack of knowledge on structure and function
of coral ecosystems. (…) The US impact assessment
report reaches similar conclusions”.93 In the South
Pacific, the non legally-binding interim measures
adopted before the entry into force of the South
Pacific RFMO (SPRFMO) ask States to conduct impact assessments on VMEs for their bottom fishing
activities.94 However, only New Zealand and Spain
have so far submitted information in this respect.
Finally, in the Indian Ocean, with the sole exception of Australia, no countries have published an
impact assessment.
In general, the conduct of EIAs with respect to
VMEs and deep-sea fisheries is subjected to a
number of practical and governance issues. They
have been discussed at length in various reports
and seminars, including a workshop organised in
2011 under the auspices of the UNGA to review
the implementation of its resolutions on deep-sea
fisheries.95 In order to prepare the workshop, a report was published by the UN Secretary General,
indicating that “while significant actions have been
taken, implementation of the resolutions continues
to be uneven and further efforts are needed”.96 It is
noted that “requirements for impact assessments
have been implemented by CCAMLR, NAFO, NEAFC
and SEAFO, but the requirements vary”.97 A lack of
93. Gianni M., Currie D.E.J., Fuller S., Speer L., Ardron J.,
Weeber B., Gibson M., Roberts G., Sack K., Owen S.,
Kavanagh A. (2011), “Unfinished business: a review of
the implementation of the provisions of UNGA resolutions 61/105 and 64/72 related to the management of
bottom fisheries in areas beyond national jurisdiction”,
Deep Sea Conservation Coalition, p.24.
94. Articles 11, 12 and 13 of the Interim Measures adopted
by participants in negotiations to establish the South
Pacific Regional Fisheries Management Organisation.
95. See document A/66/566, Letter dated 27 October 2011
from the Moderator of the Workshop to the President
of the General Assembly, “Workshop to discuss implementation of paragraphs 80 and 83 to 87 of resolution
61/105 and paragraphs 117 and 119 to 127 of resolution
64/72 on sustainable fisheries, addressing the impacts
of bottom fishing on vulnerable marine ecosystems and
the long-term sustainability of deep-sea fish stocks”.
96. Document A/66/307 of 15 August 2011, Report of the
Secretary-General, “Actions taken by States and regional
fisheries management organisations and arrangements
in response to paragraphs 80 and 83 to 87 of General
Assembly resolution 61/105 and paragraphs 113 to 117
and 119 to 127 of General Assembly resolution 64/72 on
sustainable fisheries, addressing the impacts of bottom
fishing on vulnerable marine ecosystems and the longterm sustainability of deep-sea fish stocks”.
97. Document A/66/307 of 15 August 2011, Report of the
Secretary-General, “Actions taken by States and regional
fisheries management organisations and arrangements
25
Environmental impact assessments in areas beyond national jurisdiction
consistency can also be found all over the globe in
respect of the understanding of what constitutes
an SAI and a VME. Across RFMOs and high seas
deep-seas fishing nations, there are differences
in this respect, with various standards applying
depending on the region concerned. In addition,
the focus of the impact assessments is mostly on
the impacts of fishing activities on the populations
of harvested species, or on species that are associated with or dependent on these harvested species, rather than on the marine environment itself,
meaning that the impact on most deep-sea species
is not assessed. In the 2011 report of the UNGA
workshop, it was “suggested that the cumulative impacts of fishing activities were not sufficiently taken
into account in impact assessments”.98 Transparency within RFMOs on this rather sensitive subject
has been improving over the past years, but not all
actually publish the impact assessments conducted
by their Contracting Parties. Finally, and the issue
is of common concern not only in RFMOs but also
in the vast majority of international organisations
working on ABNJ issues, the question of enforcement is mainly unsolved, as it lies primarily within
the hands of the flag States.
Taking the results of the previously mentioned
workshop into consideration, in 2011, the UNGA
noted in its annual resolution on fisheries that “despite the progress made, the urgent actions called for
in the relevant paragraphs of resolutions 61/105 and
64/72 have not been fully implemented in all cases,
and in this regards, further actions in accordance
with the precautionary approach, ecosystem approaches and international law and consistent with
the Guidelines are needed to strengthen the continued implementation”. In this regard, the Resolution called upon RFMOs/As and States “(a) to
strengthen procedures for carrying out assessments
to take into account individual, collective and cumulative impacts and for making the assessments publicly available, recognising that doing so can support
transparency and capacity-building globally; (b) to
establish and improve procedures to ensure that
in response to paragraphs 80 and 83 to 87 of General
Assembly resolution 61/105 and paragraphs 113 to 117
and 119 to 127 of General Assembly resolution 64/72 on
sustainable fisheries, addressing the impacts of bottom
fishing on vulnerable marine ecosystems and the longterm sustainability of deep-sea fish stocks”, § 204.
98. Document A/66/566, Letter dated 27 October 2011
from the Moderator of the Workshop to the President
of the General Assembly, “Workshop to discuss
implementation of paragraphs 80 and 83 to 87 of
resolution 61/105 and paragraphs 117 and 119 to 127 of
resolution 64/72 on sustainable fisheries, addressing
the impacts of bottom fishing on vulnerable marine
ecosystems and the long-term sustainability of deepsea fish stocks”, § 9.
26
assessments are updated when new conditions or information so require; (c) to establish and improve
procedures for evaluating, reviewing and revising,
on a regular basis, assessments based on best available science and management measures”.99
2.2.3.2. Deep-seabed mining
Deep-seabed mining in the Area is, along with
bottom fishing, the other iconic human activity
with the potential to seriously harm the marine
environment. Exploitation of the mineral resources
of the Area has not started yet, as States are still
engaged in the prospection and exploration
phases. Unlike the high seas bottom fisheries, this
question was debated during the UNCLOS negotiations. According to Article 145 of the Convention,
“necessary measures shall be taken in accordance
with this Convention with respect to activities in the
Area to ensure effective protection for the marine
environment from harmful effects which may arise
from such activities”. Adoption of these measures
must be sought through the International Seabed
Authority (ISA). With respect to EIAs conducted
for deep-seabed mining in the Area, the obligation has been further refined in the Implementing Agreement to Part XI of UNCLOS, which
states that “an application for approval of a plan
of work shall be accompanied by an assessment of
the potential environmental impacts of the proposed
activities and by a description of a programme for
oceanographic and baseline studies in accordance
with the rules, regulations and procedures adopted
by the Authority”.100 According to Article 165 of
UNCLOS, assessments of the environmental implications of activities in the Area shall be made by
the Legal and Technical Commission of the International Seabed Authority (LTC).101 The LTC has
the mandate to “make recommendations to the
Council [of ISA] to disapprove areas for exploitation
by contractors or the Enterprise in cases where substantial evidence indicates the risk of serious harm to
the marine environment”.102
The ISA, working on its Mining Code, has already issued a number of regulations relating
99. UNGA Resolution 66/88 of 6 December 2011, Sustainable fisheries, including through the 1995 Agreement
for the Implementation of the Provisions of the United
Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management
of Straddling Fish Stocks and Highly Migratory Fish
Stocks, and related instruments, § 129.
100.Implementing Agreement to Part XI of UNCLOS,
Annex. Section 1, Article 7.
101.Article 165 (2) (d) of UNCLOS: “The Commission
shall: (d) prepare assessments of the environmental
implications of activities in the Area”.
102. Article 165 (2) (l) of UNCLOS.
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Environmental impact assessments in areas beyond national jurisdiction
to the prospection and exploration for deepseabed mineral resources. In Regulation 18 of
the Regulations on Prospecting and Exploration
for Polymetallic Nodules in the Area adopted in
2000, the procedure for EIAs in this respect is further specified. To gain approval for planned exploration work, applicants must submit “(b) A description of the programme for oceanographic and
environmental baseline studies in accordance with
these Regulations and any environmental rules, regulations and procedures established by the Authority that would enable an assessment of the potential
environmental impact of the proposed exploration
activities, taking into account any recommendations
issued by the Legal and Technical Commission; (c) a
preliminary assessment of the possible impact of the
proposed exploration activities on the marine environment; (d) a description of proposed measures for
the prevention, reduction and control of pollution
and other hazards, as well as possible impacts to
the marine environment”. Similar requirements are
developed in Regulation 20 of the Regulations on
Prospecting and Exploration for Polymetallic Sulphides in the Area, adopted in 2010 and in Regulation 20 of the Regulations on Prospecting and Exploration for Cobalt-Rich Ferromanganese Crusts
in the Area, adopted in 2012103, with the difference
that the need to assess the potential environmental impact of the proposed exploration activities
specifically on marine biodiversity was included in
the last two Regulations. Information gathered in
this context is then used by the LTC to ensure that
proposed exploration activities in the Area are either managed to prevent serious harmful effects to
VMEs or are not given authorisation to proceed.104
In 2002, recommendations were issued for the
guidance of contractors for the assessment of the
possible environmental impacts arising from the
exploration for polymetallic nodules in the Area.
103.All the Regulations can be found on ISA website,
under: http://www.isa.org.jm/en/mcode. The Regulations on Prospecting and Exploration for Cobalt-Rich
Ferromanganese Crust in the Area were not available
in this page at the time of writing this study, but can
be found under: http://www.isa.org.jm/files/documents/EN/18Sess/Council/ISBA-18C-L3.pdf.
104. See for example Regulations on prospecting and exploration for polymetallic sulphides in the Area, Regulation 33 (4): “The Commission shall develop and implement procedures for determining, on the basis of the
best available scientific and technical information,
including information provided pursuant to regulation 20, whether proposed exploration activities in the
Area would have serious harmful effects on vulnerable
marine ecosystems, in particular hydrothermal vents,
and ensure that, if it is determined that certain proposed exploration activities would have serious harmful effects on vulnerable marine ecosystems, those
activities are managed to prevent such effects or not
authorised to proceed”.
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Amended draft recommendations, which also include the assessment of possible environmental
impacts arising from the exploration of polymetallic sulphides in the Area were recently prepared
and have already been circulated to contractors
to obtain their comments. Consideration of these
draft recommendations will be a priority for the
next session of the Commission.105 In addition, ISA
has issued standard clauses for exploration contracts106, the section 5 of which is dedicated to EIAs:
“prior to the commencement of testing of collecting
systems and processing operation, the Contractor
shall submit to the Authority: (a) a site-specific environmental impact statement based on available
meteorological, oceanographic and environmental
data collected during the preceding phases of exploration and containing data that could be used to
establish an environmental baseline against which
to assess the likely effects of the mining tests; (b) an
assessment of the effects on the marine environment
of the proposed tests of collecting systems; (c) a proposal for a monitoring programme to determine the
effects on the marine environment of the equipment
that will be used during the proposed mining tests”.
In 2012, the Council of ISA approved an environmental management plan for the Clarion-Clipperton Zone, a zone rich in polymetallic nodules located in the Pacific, where eight exploration licences
have already been granted.107 One of the guiding
principles of this plan is “the prior assessment of activities that may have significant adverse impacts on
the environment”.108 In this respect, the operational
objectives of the plan for the entire zone are to
“(a) Establish periodically updated environmental
baseline data for the region; (b) undertake cumulative environmental impact assessments as necessary based on exploitation proposals; (c) consider
the environmental risks to the Clarion-Clipperton
Zone posed by technological developments in mining technologies”.109 These operational objectives
are complemented by three similar management
105.See document ISBA/18/C/20 of 20 July 2012, Summary Report of the Chair of the Legal and Technical Commission on the work of the Commission during the Eighteenth Session of the International Seabed
Authority, §22-23.
106.See http://www.isa.org.jm/files/documents/EN/Regs/
Code-Annex4.pdf.
107. See document ISBA/18/C/22 of 26 July 2012, Decision
of the Council relating to an environmental management plan for the Clarion-Clipperton Zone.
T h e
environmental management plan itself can be found in
document ISBA/17/LTC/7 of 13 July 2011, Environmental Management Plan for the Clarion-Clipperton Zone.
108.ISBA/17/LTC/7 of 13 July 2011, Environmental
Management Plan for the Clarion-Clipperton Zone,
§ 13 (d).
109. Ibid, § 37.
27
Environmental impact assessments in areas beyond national jurisdiction
objectives (collection of information from EIAs;
consideration of cumulative impacts of mining
and other human activities; exchange of information on new and developing technologies).110 In addition, the plan foresees that the ISA Secretariat
will complete a cumulative impact assessment for
seabed mining in this zone, including: “(a) evaluation of the potential impacts of multiple mining
operations in the Clarion-Clipperton Zone on benthic and water column ecosystems; (b) evaluation of
the potential impacts of multiple mining operations
in the Clarion-Clipperton Zone on other mining operations for nickel, copper, cobalt and other metals
that could be recovered from the Zone’s polymetallic nodule deposits”.111 These dispositions have now
entered into force for an initial three-year period.
Interestingly, issues raised with respect to deepseabed mining in the Area have led to the adoption,
by the International Tribunal on the Law of the Sea
(ITLOS) of an Advisory opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with respect to Activities in
the Area which underlined that “the obligation to
conduct an environmental impact assessment is a direct obligation under the [United Nations Convention on the Law of the Sea] and a general obligation
under international customary law”.112
2.2.3.3. Dumping of waste
According to Article 2010 of UNCLOS on the pollution by dumping, “States shall adopt laws and regulations to prevent, reduce and control pollution of
the marine environment by dumping”. Recognising
the competence of other arenas on the subject,
the article adds that “States, acting especially
through competent international organisations or
diplomatic conference, shall endeavour to establish
global and regional rules, standards and recommended practices and procedures to prevent, reduce
and control such pollution. (…) National laws,
regulations and measures shall be no less effective
in preventing, reducing and controlling such pollution than the global rules and standards”. On the
issue of the dumping of waste, and its placement
at sea, the global rules and standards are determined through the framework of the 1972 London
Convention on the Prevention of Marine Pollution by Dumping of Waste and Other Matter
and its 1996 Protocol.
The geographical scope of the London
110. Ibid, § 40.
111. Ibid, § 51.
112. International Tribunal on the Law of the Sea, Advisory
Opinion on Responsibilities and Obligations of States
Sponsoring Persons and Entities with respect to Activities in the Area, 1 February 2011, p. 44, §145.
28
Convention (LC) encompasses all marine waters
other than the internal waters of States113 and therefore applies to ABNJ. In this context, “the disposal
of wastes or other matter directly arising from, or related to the exploration, exploitation and associated
off-shore processing of seabed mineral resources will
not be covered by the provisions of this Convention”114
as it is covered by another regime established by
the ISA. The LC establishes a list system, according
to which dumping of wastes or other matter listed
in Annex I to the Convention is prohibited whereas
dumping of wastes or other matter listed in Annex II requires a prior special permit and dumping of all other wastes or matter requires a prior
general permit.115 According to Article IV (2) of the
Convention, “any permit shall be issued only after
careful consideration of all the factors set forth in
Annex III, including prior studies of the characteristics of the dumping site”. Characteristics taken into
account while assessing the opportunity to deliver
a permit for the dumping of matter at sea include
(i) characteristics and composition of the matter,
including whether an adequate scientific basis exists concerning characteristics and composition of
the material to be dumped, to assess its impact on
marine life and human health; (ii) the characteristics of the dumping site and method of deposit
(including the consideration of the existence and
effects of other dumpings which have been made
in the dumping area); (iii) general considerations
and conditions such as possible effects on amenities, possible effects on marine life and on other
uses of the seas and “practical availability of alternative land-based methods of treatment, disposal
or elimination or of treatment to render the matter
less harmful for dumping at sea”. After prior assessments are conducted, permits are delivered by a
national authority designated by each Contracting
Party.
Contracting Parties to the LC adopted a Protocol
in 1996 “to further modernise the Convention and
eventually replace it”.116 This London Protocol (LP)
introduces the precautionary approach and the
polluter pays principle. It changes the list system
into a reverse list, by prohibiting the dumping of
113. Article III (3) of the Convention on the Prevention of
Marine Pollution by Dumping of Wastes and Other
Matter.
114. Article III (1) (b) (c) of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and
Other Matter.
115. Article IV (1) of the Convention on the Prevention of
Marine Pollution by Dumping of Wastes and Other
Matter.
116.See http://www.imo.org/OurWork/Environment/SpecialProgrammesAndInitiatives/Pages/London-Convention-and-Protocol.aspx.
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Environmental impact assessments in areas beyond national jurisdiction
Figure 2. Stages in the application of the Guidelines
Consider
Consider waste prevention audit and
Waste Prevention Audit
waste management options
WasteCharacterization
characterization
Waste
reject
reject
yes
yes
and Waste Managment Options
Are
there
practicable
Are
there
practicable
opportunities
to re-use,
recycle
opportunities
to re-use,
or treat or
thetreat
waste?
recycle
the
waste?
no
no
Action
List
Action list
IsIsmaterial
material
acceptable?
acceptable?
no
no
Can
Can material
be
material
be made
made acceptable?
acceptable?
yes
yes
no
no
reject
reject
yes
yes
Identify and characterize
Identify and
characterize
dumping site
Dumping
Site
Determine potential
Determine
potential
impacts and
impacts
and prepare
prepare impact hypothes(i/e)s
Impact Hypothes(i/e)s
IssuePermit?
permit?
Issue
no
no
reject
reject
yes
Yes
Implement
project
Implement
projects
and and
monitor
monitor
compliance
compliance
Field
Monitoring
Field
monitoring
and
assessment
and
Assessment
Source: Guidelines for the Assessment of Wastes or Other Matter that May be Considered for Dumping.
IDDRI
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29
Environmental impact assessments in areas beyond national jurisdiction
wastes and other matters with the exception of
those listed in its Annex I for which dumping requires a permit.117 Annex II of the Protocol details
the assessment procedure and the substantive
requirements:
mm Assessment of the alternatives to dumping;
mm Consideration of waste management options
(re-use, off-site recycling, destruction of hazardous constituents, treatment to reduce or remove the hazardous constituents and disposal
on land, in air or in water);
mm Detailed description and characterisation of the
waste;
mm Development of a national Action List to provide
for a mechanism for screening candidate wastes
and their constituents on the basis of their potential effects on human health and the marine
environment;
mm Information required to select a dump-site;
mm Assessment of potential effects;
mm Monitoring;
mm Permit conditions, including the obligation to
review them at regular intervals, taking into account the results of monitoring programmes.
Contracting Parties have further developed generic and specific Guidelines for all wastes included in the reverse LP list. These documents contain
a step-by-step presentation of the requirements
contained in Annex II (see Figure 2).
2.2.3.4. Ocean fertilisation
As the climate change issue is becoming more and
more challenging and pressing, there has been
increasing interest in the use of geo-engineering,
a deliberate human intervention in the Earth’s
climate system that might moderate climate
warning. Ocean fertilisation is one of the activities classified under this umbrella and has been
defined as “any activity undertaken by humans
with the principal intention of stimulating primary
productivity in the oceans”.118 In the late 2000s,
international concerns over the unregulated development of large-scale ocean fertilisation activities
led to the adoption, by the CBD, of a decision in
which its Contracting Parties are requested “in
accordance with the precautionary approach, to
117. Matters listed in Annex I are dredged material, sewage sludge, fish waste, vessels and platforms or other
man-made structures, inert, inorganic geological material, organic material of natural origin, bulky items primarily comprising iron, steel, concrete and similarly
unharmful materials for which the concern is physical
impact, under a number of precise conditions, and carbon dioxide streams from carbon dioxide capture processes for sequestration.
118. Resolution LC-LP.1 (2008) on the Regulation of Ocean
Fertilisation, adopted on 31 October 2008, §2.
30
ensure that ocean fertilisation activities do not take
place until there is an adequate scientific basis on
which to justify such activities, including associated
risks, and a global, transparent and effective control
and regulatory mechanism is in place for these
activities; with the exception of small-scale scientific research within coastal waters. Such studies
should only be authorised if justified by the need to
gather specific scientific data, and should also be
subject to a thorough prior assessment of the potential impacts of the research studies on the marine
environment, and be strictly controlled, and not be
used for generating and selling carbon offsets or any
other commercial purposes”.119 The same decision
also recognised the mandate of the LC/LP in this
respect and urged “parties and other Governments
to act in accordance with the decision of the London
Convention”.120
Consideration of the ocean fertilisation issue
has been ongoing since 2007 within the meetings
of the Parties to the LC and LP. That year, the scientific group established under the LC issued a
“statement of concern regarding iron fertilisation
of the oceans to sequester CO2121, in which they recommended that such activities be evaluated carefully against the aims of the LC and of the LP. In
2008, Contracting Parties to the LC and LP agreed
that the scope of these instruments includes ocean
fertilisation activities and that, for the time being,
ocean fertilisation activities other than legitimate
scientific research should not be allowed.122 Therefore, ocean fertilisation activities other than legitimate scientific research are considered as being a
placement of matter which does not fulfil the requirements under Article III.1 (b) (ii) of the LC and
1.4.2 of the LP and therefore do not qualify for any
exemption. The 2008 Resolution considers legitimate scientific research on ocean fertilisation as
being “placement of matter for a purpose other than
the mere disposal thereof, provided that such placement is not contrary to the aims” of the LC and LP123
119. CBD COP 9, Decision IX/16 on Biodiversity and Climate
Change, § (C) (4).
120.The CBD has further reiterated its concerns about
ocean fertilisation and its recognition of the role of the
LC and the LP in § 57 to 62 of Decision X/29 on Marine
and Coastal Biodiversity adopted in 2010 in Nagoya
and in § 10 to 12 of Decision XI/20 on Climate-related
Geo-engineering adopted in 2012 in Hyderabad.
121. LC-LP.1/Circ.14 of 13 July 2007, “Statement of concern
regarding iron fertilisation of the oceans to sequester
CO2”.
122. Resolution LC-LP.1 (2008) on the Regulation of Ocean
Fertilisation adopted on 31 October 2008.
123.Articles III (b) (ii) of the LC and 1 (4) (2) (2) of the
LP: “Dumping does not include (…): placement of matter for a purpose other than the mere disposal thereof,
provided that such placement is not contrary to the
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Environmental impact assessments in areas beyond national jurisdiction
and can therefore be authorised provided that it
fulfils the conditions enacted in the assessment
framework.
This assessment framework was adopted in
2010124, with the first aim to provide a tool for assessing proposed activities on a case-by-case basis
to determine if they constitute legitimate scientific
research that is not contrary to the aims of the LC
or LP. The assessment procedure itself is divided
in two parts: an initial assessment, to determine
whether a proposed activity is legitimate scientific research on ocean fertilisation and an environmental assessment, to determine whether the
proposed activity is not contrary to the aims of
the LC and the LP. The environmental assessment
must follow several steps: problem formulation,
site selection and description, exposure assessment, effects assessment, risk characterisation and
risk management. With respect to site selection,
it is worth noting that the framework indicates
that the proximity to other uses of the sea such
as fishing, navigation, engineering uses, areas of
special concern and value and traditional uses of
the sea must be taken into consideration. During
the risk characterisation step, cumulative impacts
resulting from other activities such as aquaculture, offshore oil and gas exploration and other
fertilisation activities might also be anticipated.
Within the risk management phase, Contracting
Parties should also develop a monitoring plan to
“verify that any conditions imposed by the Contracting Parties are met – compliance monitoring – and
that the assumptions made during the assessment of
the proposed activity review were correct and sufficient to protect the environment and human health
– impact monitoring”.125 Interestingly, a consultation process with all stakeholders and potentially
affected countries is recommended before a final
decision is made, and this decision should be publicly available.
The LC/LP Resolutions and the subsequent assessment framework are not legally-binding and
debates are taking place within the LC and the LP
to determine whether this is the most suitable way
to deal with ocean fertilisation and if other geoengineering activities should also be included in
the current discussions, for example through the
development of a general placement regime. In
this context, various options are considered by
aims of” the LC and of the LP.
124.Resolution LC-LP.2 (2010) on the assessment framework for scientific research involving ocean fertilisation, adopted on 14 October 2010.
125.Resolution LC-LP.2 (2010) on the assessment framework for scientific research involving ocean fertilisation, adopted on 14 October 2010, p.19.
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the Parties to the LC/LP, including the adoption
of amendments to the Protocol and to its annexes
or of an interpretative resolution.126 Amending the
LP and developing legally-binding annexes could
allow for the development of more stringent assessment frameworks, especially as international
concerns over the conduct of geo-engineering activities are growing.127
3. IDENTIFICATION OF GAPS
A general obligation to conduct assessments of
the impacts of human activities under UNCLOS
exists, but it is not detailed enough to be adequately enforced in ABNJ. If a comparison is made
with other legally-binding international instruments also dealing with the subject, such as the
Espoo Convention or the Kiev Protocol, it is easy
to see that the notions contained in Article 206
of UNCLOS are not precise enough to allow
for a good implementation of this obligation.
This has led to the rather chaotic development of
sector or region-based EIA regulations, something
which in turn compromised an adequate level of
consistency between regions (regions such as the
Southern Ocean and to a more limited extent
the North-East Atlantic and the Mediterranean
Sea which have a strong institutional framework,
compared to most of the regions of the world such
as the Indian Ocean, the North Pacific, the South
Atlantic…, which have a far from developed institutional framework with almost inexistent EIA
requirements) and between sectors.
In addition, not all sectors have developed legally-binding requirements on EIAs in ABNJ. A 2008
study conducted by IUCN identified that there
were no specific EIA requirements for: “seabed activities other than mining, (e.g. cable and pipelines,
seabed installations, marine scientific research,
bioprospecting, sea-based tourism); high seas activities other than dumping and some fishing (e.g.,
shipping, marine scientific research, floating installations (e.g., wave, nuclear, CO2 mixers)); impacts
of high seas fishing activities on outer continental
shelves of coastal nations (e.g. deep-sea fishing impacts on sedentary species and resources, vulnerable
benthic ecosystems); impacts of outer continental
126.See for example document LC/33/4 of 20 June 2011,
“Report of the Third Meeting of the Intersessional
Working Group on Ocean Fertilisation”.
127.See http://www.guardian.co.uk/environment/2012/
oct/15/pacific-iron-fertilisation-geoengineering.This is
one example of the numerous recently published articles about an ocean fertilisation experiment that took
place illegally off the coast of Canada, which have subsequently attracted worldwide attention and concern.
31
Environmental impact assessments in areas beyond national jurisdiction
shelf activities on high seas (e.g. seismic testing
noise); military activities; or new or emerging uses
of the seas”. 128 Although UNCLOS does seem to impose a general obligation to assess the impacts of
human activities in ABNJ, it does not foresee the
creation of a default mechanism for sectoral activities which are not currently assessed in the context of existing organisations129 and it leaves this
obligation entirely and implicitly to the flag State.
In any case, there are currently no detailed global
and legally-binding requirements on EIAs, including requirements on reporting and on the publicity
of reports and nor are there any global compliance
and enforcement mechanisms. In the absence of
such requirements, it would be extremely surprising if flag States were to decide on their own accord
to take action and to impose the strict obligations
regarding EIAs in ABNJ on their nationals and vessels. This is the case, for example, for submarine
cable operations, for which no specific global requirements exist. In this respect, a 2009 report
noted that “EIAs for cable operations are rare and
are generally limited to a coastal State’s territorial
sea”130 even if modern cables are buried into the
seabed at depths down to 1500 meters, or deployed
on the seabed at depths greater than 1500 meters.
In addition, experience has shown that even in the
context of the most developed and stringent frameworks, such as within the AT system, flag States
tend to minimise their obligations with respect to
EIAs. Instead of considering it as a strategic step in
the planning of an activity, they see it as merely an
administrative stage of the process.
One of the largest gaps in the system is the lack
of consideration of the cumulative impacts of human activities in the conduct of most EIAs. The
notion of cumulative impacts has been defined as
“the impact on the environment which results from
the incremental impact of the action when added
to other past, present and reasonably foreseeable
future actions regardless of what agency or person
128. Gjerde K.M. et al. (2008), “Regulatory and Governance
Gaps in the International Regime for the Conservation
and Sustainable Use of Marine Biodiversity in Areas
beyond National Jurisdiction”, IUCN, Gland, Switzerland, p.8.
129.As noted by Prof. R. Warner, “as existing activities
intensify and new activities emerge in ABNJ, there is
no default international law framework or network
of institutions to assess the potential impacts of these
activities on the marine environment in ABNJ”.S e e
Warner R. (2012), “Oceans beyond Boundaries: Environmental Assessment Frameworks”, The International
Journal of Marine and Coastal Law, Vol. 27, p. 482.
130. See Carter L., Burnett D., Drew S., Marle G., Hagaden
L., Bartlett-McNeil D. and Irvine N. (2009), “Submarine Cables and the oceans – Connecting the World”,
UNEP-WCMC Biodiversity Series No 31, p.32.
32
undertakes such other actions. Cumulative impacts
can result from individually minor but collectively
significant actions taking place over a period of
time”.131 Although assessments of cumulative impacts have for a long time been common practice
within national jurisdiction132, they are not for the
time being considered in most sector-based and region-based requirements in ABNJ (one of the most
notable exceptions being the Environmental Management Plan of the Clarion-Clipperton Zone).
Finally, from the strategic point of view, it is also
noteworthy that no requirement for SEA actually
exists in ABNJ, although SEAs are now a well-established practice within national jurisdiction.
4. POSSIBLE WAYS FORWARD
The adoption of a legally-binding instrument
on issues including EIAs in ABNJ is certainly the
preferred option for many but there are also some
complementary actions which can be undertaken
to enhance the current framework. In addition, the
attention of States negotiating within the UNGA
must not be entirely focused on the instrument
to be adopted itself, but also on the content of the
obligation to carry out EIAs in ABNJ. The future
implementation of this requirement will rely
heavily on the quality of the standards and procedures adopted in this context.
4.1. Options to establish a global
legal framework for EIAs in ABNJ
As there are a number of gaps with respect to EIAs
in ABNJ, one of the most logical answers provided
to this problem would be to link the issue with
the ones already discussed within the appropriate
global arena, which is the BBNJ Working Group
established under the auspices of the UNGA. As
described in the introduction of this study, this
is already the case, as many States supporting
the negotiation of an implementing agreement
to UNCLOS see EIAs as one of the topics to be
considered under this negotiation, together
with marine genetic resources, MPAs, capacity-building and transfer of technology. In this
respect, a number of concrete steps could already
be undertaken to improve the current global
framework.
131. Council on Environmental Quality (CEQ) (1978), “Regulations for Implementing NEPA”, (43 FR 56003),
Washington DC, Sec. 1508.7.
132. See for example the European Guidelines on the subject: http://ec.europa.eu/environment/eia/eia-studies-and-reports/guidel.pdf.
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Environmental impact assessments in areas beyond national jurisdiction
In October 2012, Contracting Parties to the CBD
adopted Voluntary Guidelines for the Consideration of Biodiversity in EIA and SEA in Marine and
Coastal Areas, and decided to transmit them to
the UNGA. As previously noted, these Guidelines
mainly address scientific and technical issues,
raising some governance questions that can only
be addressed within the UNGA framework and
through competent sectoral organisations. IUCN
highlighted in a position paper that the effective
implementation of the Guidelines would require
“ongoing regional and global cooperation to, among
other things: 1) promote access to data, analysis and
expertise; 2) enable harmonisation of standards,
thresholds and criteria; 3) ensure full stakeholder
participation; 4) promote consistent application of
precaution; 5) build capacity; 6) assess cumulative
impacts; 7) support relevant research; 8) ensure independent review; 9) prevent duplication; and 10)
enable transfer of lessons learnt. Given the paucity
of data for marine areas beyond national jurisdiction, globally and regionally supported scientific
input is also needed, particularly on the presence
of ecologically or biologically significant areas and
vulnerable marine ecosystems based on the CBD
and other accepted criteria. Thus a more ambitious legal, scientific and institutional framework is
called for”.133 But even in this context, States could
adopt a UNGA Resolution calling on all States
to implement these Voluntary Guidelines and
to report on their implementation. Building on
the obvious link which exists between the Guidelines and the EBSA process, and as the first reports
on the description on EBSAs will be sent this year
to the UNGA, such a Resolution could also call
for EIAs to be conducted in identified EBSAs for
all human activities likely to cause significant
adverse impact to marine biodiversity in ABNJ.
Such linkage between the EBSA process and
the Guidelines would once again raise a complex
institutional issue. In the EBSA process, it is still
not perfectly clear which organisations will be in
charge of the final identification of EBSAs. According to CBD decisions on the subject, it seems that
it would ultimately be States and competent international organisations that would be given the responsibility. For example, the OSPAR Commission
and NEAFC will be in charge of EBSA identification in the North-East Atlantic, through decisions
adopted by their Contracting Parties. In this case,
and if UNGA Resolutions on EBSAs and EIAs are
adopted, they will also be responsible for the implementation of this obligation for their EBSAs
and for its monitoring, in as much as it concerns
133. IUCN Position Paper for SBSTTA 16, 2012, p.6.
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activities which fall under their mandate. While
this process is extremely complicated, it also highlights the lack of consistency across regions, with
most having an insufficient institutional framework to conduct such actions. 134
Several States negotiating within the BBNJ
Working Group have emphasised that the adoption of voluntary guidelines by the industry, the
development of codes of conducts or the development of EIA requirements within the sectors
could be a sufficient option for the future. None
of these solutions are totally satisfactory. Voluntary guidelines and codes of conducts are nonlegally binding instruments, and this study has
repeatedly shown that even legally-binding
sectoral instruments have not been adequately
implemented by States. The development of legally-binding EIA requirements within the various
sectors corresponds to the current state of play,
with little improvement on the situation (such as
covering more human activities in ABNJ with the
EIA requirement). However, this approach certainly does not take into consideration the lack of consistency between sectors and regions, the need to
establish a global requirement for the assessment
of cumulative impacts or the need for a default
mechanism, which would be operational as soon
as new activities emerge. In addition, geographical
coverage of these instruments may vary considerably, as well as the degree of State participation.
Therefore the best option to address significant gaps related to EIAs in ABNJ would be the
establishment of a global legally-binding instrument. This instrument could obviously be the
implementing agreement currently proposed by
many States participating in the debates under the
umbrella of the BBNJ Working Group. This option
is supported by the EU. However, without being
too pessimistic, if States do not reach an agreement
by 2014 on the launch of the negotiations for this
instrument, it might then be advisable to consider
other options.135 In this respect, one can suggest:
mm The adoption of an additional protocol to the
CBD on EIA-related issues. This would mean
134. On the lack of consistency across regional frameworks,
see Druel E., Ricard P., Rochette J., Martinez C.(2012),
“Governance of marine biodiversity in areas beyond
national jurisdiction at the regional level: filling the
gaps and strengthening the framework for action. Case
studies from the North-East Atlantic, Southern Ocean,
Western Indian Ocean, South West Pacific and the Sargasso Sea”, Studies N° 04/12, IDDRI and AAMP, Paris,
France, 102p.
135. Options presented below are based on the conclusions
of a presentation delivered by Prof. R. Warner, available at: http://ancors.uow.edu.au/content/groups/
public/@web/@law/@ancors/documents/doc/
uow103164.pdf.
33
Environmental impact assessments in areas beyond national jurisdiction
that States would have to agree that the CBD
would also provide an appropriate arena to address governance issues in respect to the conservation and sustainable use of marine biodiversity in ABNJ (at present they consider it to
be competent only for scientific and technical
issues);
mm The adoption of a Protocol to the Espoo Convention and to the Kiev Protocol, keeping in mind
that as of today, these two instruments are far
from having achieved universal participation
and that the amendment to the Espoo Convention on the participation of all UN Member
States (and not only UNECE Member States)
still needs to come into force;
mm A stand-alone legally-binding instrument.
mm In all these cases, the global instrument concerned would need to address a large number of
issues, such as:
mm The definition of minimum standards, requirements and thresholds for the assessment of all
human activities in ABNJ, in order to ensure consistency between various sectors and regions, as
well as the introduction of requirements for the
assessment of cumulative impacts. The content
of the EIA requirement is the most crucial point
here. These minimum standards, requirements
and thresholds would serve as a default mechanism for activities not covered by competent sectoral organisations;
mm The designation of a global entity to which
States and competent authorities will have to
report on their EIA activities, and which would
be in charge of monitoring and compliance;
mm Deciding on a mechanism to link existing regional and sectoral processes with newly established global requirements.
4.2. Content of the obligation
It is not sufficient to declare that EIAs are needed
to cover human activities in ABNJ and to insist on
the requirement for the adoption of a new legal
instrument that deals inter alia with the subject.
As seen in previous sections of this study, in 1982
States included an EIA requirement in UNCLOS,
but in such general terms that ultimately it was not
adequately implemented. Therefore, the content
of an obligation to carry out EIAs in ABNJ must be
carefully and adequately considered. At least, any
international instrument adopted on the subject
would need to address the following issues: (i)
define the principles against which the outcome
of the EIA will be tested and the final decision to
authorise an activity be taken; (ii) define a screening process, with appropriate thresholds, and
include the need to evaluate cumulative impacts;
34
(iii) define the minimum components of an EIS;
(iv) provide for the creation of an advisory scientific
and technical body and (v) provide for the creation
of a compliance committee. All these components
are minimum requirements that would apply to all
human activities in ABNJ, while for certain activities whether or not they benefit from a sector or
region-specific detailed legally-binding framework
would be taken into account. Sector and regionspecific instruments (such as the ones developed
for deep-sea fisheries, dumping of wastes or ocean
fertilisation) would need to at least comply with
the generic requirements developed in the international instrument, but could also adapt their regulations to the specificities of a region or an activity
and go further in the extent of the obligations on
EIAs in ABNJ (but never beyond).
Any international instrument on the subject will
need to include some general objectives or principles against which the outcome of any EIA will be
tested and to inform the final decision on whether
or not the proposed activity will be authorised.
This is the case, for example, in the 1991 Protocol
on Environmental Protection to the Antarctic Treaty. Its Article 3 on Environmental Protection states
that “activities in the Antarctic Treaty area shall be
planned and conducted so as to avoid: (i) adverse effects on climate or weather patterns; (ii) significant
adverse effects on air or water quality; (iii) significant changes in the atmospheric, terrestrial (including aquatic), glacial or marine environment; (iv)
detrimental changes in the distribution, abundance
or productivity of species fauna and flora; (v) further jeopardy to endangered or threatened species or
populations of such species; or (vi) degradation of, or
substantial risk to, areas of biological, scientific, historic or wilderness significance”. A useful approach
could be to include a “zero-biodiversity loss” at
the heart of the EIAs processes in ABNJ. In a 2011
report, building on the precautionary principle, it
was proposed that human activities in ABNJ should
only be authorised if the case is made that they do
not imply any more erosion of biodiversity.136
An international instrument will not necessarily
need to include guidance on the procedural steps
to follow to carry out an EIA, as this is already
common practice. Such guidance is for example
included in the CBD Voluntary Guidelines, and it
could be considered as a minimum requirement
that any EIA undertaken in ABNJ goes through:
mm Screening, to determine which activities will be
136.Druel E., Billé R., Treyer S. (2011), “A legal scenario
analysis for marine protected areas in areas beyond
national jurisdiction. Report from the Boulogne-surMer seminar, 19-21 September 2011”, Studies N° 06/11,
IDDRI-IUCN-Agence des Aires Marines Protégées,
Paris, France, p. 18.
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Environmental impact assessments in areas beyond national jurisdiction
subject to an EIA. In this step, it is the threshold for deciding whether or not to conduct EIAs
which will be the major point for discussion and
which will need to be defined by the international instrument;
mm Scoping, to identify which potential impacts
are relevant to assess and to find alternative
options;
mm Assessment and evaluation of impacts and development of alternatives;
mm Reporting of the EIS;
mm Review of the EIS;
mm Decision-making;
mm Monitoring, compliance, enforcement and environmental auditing. This audit, which would
take place after the concerned activity has started, would need to look at the scientific aspects
of the assessment to check the accuracy of the
predictions and at the management measures,
to assess the success of mitigation measures in
reducing impacts in the concerned area.137 In
addition, this post-project analysis phase could
usefully monitor the compliance with the obligations set out in the authorisation or approval
of the activity and the effectiveness of mitigation measures.138
The international instrument would certainly
need to include requirements that stipulate the
minimum components of an EIS, in a similar way
to the many international instruments that include
articles on the minimum components for inclusion
in EIA documentation or in EIS. In the Espoo Convention, for example, the minimum components
are:
“(a) a description of the proposed activity and its
purpose;
(b) a description, where appropriate, of reasonable alternatives (for example, locational or technological) to the proposed activity and also the noaction alternative;
(c) a description of the environment likely to be
significantly affected by the proposed activity and its
alternatives;
(d) a description of the potential environmental
impact of the proposed activity and its alternatives
and an estimation of its significance;
(e) a description of mitigation measures to keep
adverse environmental impact to a minimum;
(f) an explicit indication of predictive methods
and underlying assumptions as well as the relevant
environmental data used;
137.All these procedural steps are based on the steps
described in the CBD Voluntary Guidelines.
138.This suggestion is based on Appendix V to the Espoo
Convention on post-project analysis.
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(g) an identification of gaps in knowledge and
uncertainties encountered in compiling the required
information;
(h) where appropriate, an outline for monitoring
and management programmes and any plans for
post-project analysis; and
(i) a non-technical summary, including a visual
presentation as appropriate (maps, graphs, etc.)”.139
As noted previously, these requirements are similar to the ones developed in the UNEP Goals and
Principles, and could be usefully included in any
global instrument on the subject.
At the screening stage, the definition of the
threshold used to determine whether or not a
specific activity will be subject to an EIA will be
of utmost importance. Almost all sector or regionspecific instruments have, in one way or another,
introduced this threshold notion. In the AT system, it is found under the name “minor or transitory impact”, whereas in many other instruments, it
is the notion of “significant adverse impact” which
is used. Importantly, this threshold determines
(i) the need for a complete EIA and (ii) the need
for appropriate mitigation measures or the need
to consider that the activity is likely to cause such
important negative impacts that cannot be mitigated and therefore it should not be authorised.
The AT approach is particularly interesting in that
it would help to introduce, at one point, a level
of international scrutiny. In this system, the flag
State is the final decision-making authority when
a proposed activity is likely to have, at most, only a
minor or transitory impact. Above that threshold,
the EIA must be circulated to all Contracting Parties to the AT for comments, then reviewed by the
CEP and eventually sent for approval to the ATCM.
This three steps approach could be envisaged for
all human activities in ABNJ likely to have more
than a minor or transitory impact on this fragile
marine biodiversity. In such case, there will be a
need to define more precisely the content of the
EIS depending on the likely intensity of the impact
(the more severe the impact could be, the more extensive the requirements would be).
However, it would not be sufficient to state that
an EIA will be required when an activity is likely
to cause a “significant adverse impact” or at least
a “minor or transitory impact” to marine biodiversity in ABNJ: an international instrument on the
subject would also need to provide some guidance
on how to define what is meant by “significant
adverse impact”, “minor or transitory impact” or
whatever threshold is finally chosen. This would
be general guidance, which should be considered
139.Espoo Convention on Environmental Impact Assessment in a Transboundary Context, Appendix II.
35
Environmental impact assessments in areas beyond national jurisdiction
as a minimum requirement, and could be subject
to sector-specific or region-specific definitions
(therefore taking into account already existing instruments, but also providing a legal framework
for activities which are not yet covered by any international instrument). As discussed, justifiably
so, in the CBD Voluntary Guidelines, the consideration of the impacts must also take into account
the specificities of the areas concerned: are these
areas EBSAs or VMEs (therefore requiring even
more precaution than other areas)? In addition,
independently of the fact that an area might be an
EBSA or a VME, it should be noted that thresholds
for human activities in ABNJ might be lower than
in terrestrial areas, given the high level of scientific
uncertainties in these parts of the oceans. EIAs for
human activities in ABNJ must also take into consideration the fact that impacts may arise on very
large spatial and temporal scales and therefore
not limit themselves to the consideration of overly
short periods of time and areas that are too small.
Finally, it should be included in any international
instrument on the subject that when there are too
many uncertainties about the impacts of a proposed activity, the precautionary principle should
apply and the activity should not be authorised.
One of the largest gaps that an international
agreement could address is certainly the assessment of cumulative impacts of human activities
in ABNJ. As has been shown in this study, the
current system is highly fragmented, and mostly
sector-based. Information is not always publicly
available, and no detailed and legally-binding requirement currently exists with respect to the assessment of cumulative impacts. An international
instrument on the subject could provide for a requirement to assess the cumulative impacts of human activities in ABNJ, and the need to take these
cumulative impacts into consideration when the
competent authority (the flag State alone or in coordination with a competent sectoral or regional
competent authority, or the global entity designated by the international instrument) is deciding
whether or not to authorise a specific activity in
an ABNJ. A mechanism which could help to assess
the other human activities taking place in a specific area could be the establishment of a public
database for EIAs conducted in ABNJ, similar to
the mechanism in place within the AT system. The
creation of this public database could be set out in
the international agreement itself. In this way, flag
States that make information on EIAs available in
this database could comply with their requirements on reporting and on information provision
to the general public. Such a database would also
help to increase knowledge on human activities in
ABNJ and their impacts on marine biodiversity,
36
as scientific gaps remain huge in this part of the
ocean. Including post-project analysis in this database would also be an efficient means to help
Contracting Parties and competent international
organisations to learn from past errors and from
best practice examples to improve their own current assessments.
If such an approach is retained, one could envisage that the international instrument on EIAs in
ABNJ would provide for the creation of competent
authorities similar to the CEP and to the ATCM
in the Southern Ocean, but at the global level. In
the discussions on the content of an implementing
agreement to UNCLOS on marine biodiversity in
ABNJ, the issue of the competent global authority is often raised, in particular in the context of
MPAs.140 During the Boulogne-sur-Mer seminar141,
the considered options were a new global entity,
the extension of the mandate of the ISA and a Conference of the Parties to this implementing agreement. A new global entity could include a permanent advisory body on science and technical issues,
which could be tasked to review the EIAs submitted by flag States, directly or through competent
international organisations, to provide guidance
on issues such as the assessment of cumulative impacts, and to provide advice to its governing body
(an Assembly of States Parties or a Conference of
the Parties). In the ISA option, the mandate of existing bodies such as the Legal and Technical Commission is extended, as well as their financial and
human means. If the option to simply establish
a Conference of the Parties to the Implementing
Agreement is retained, then the agreement itself
could foresee the creation of a subsidiary body
akin to the Subsidiary Body on Science, Technical and Technological Advice (SBSTTA) within
the CBD. It could review scientific and technical
aspects related inter alia to EIAs and then provide
advice on the final decision to adopt for the Conference of the Parties. In the case of the adoption
of an additional protocol to the CBD on EIAs in
ABNJ, the extension of the mandate of SBSTTA to
the consideration of certain EIAs might be envisaged. The same idea applies to the stand-alone legally-binding agreement and to the Protocol to the
Espoo Convention and Kiev Protocol options. The
advisory body established under all options could
be tasked to provide scientific and technical guidance for the conduct of EIAs in ABNJ, building on
140. See for example Druel E., Billé R., Treyer S.
(2011),
“A legal scenario analysis for marine protected areas
in areas beyond national jurisdiction. Report from
the Boulogne-sur-Mer seminar, 19-21 September
2011”, Studies N° 06/11, IDDRI-IUCN-Agence des Aires
Marines Protégées, Paris, France, 28p.
141. Ibid., pp. 14-15.
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the work already undertaken by the CBD, and to
establish mechanisms for cooperation and capacity building.
Based on the procedures already established
within the Espoo Convention and the Kiev Protocol, an international instrument on EIAs in ABNJ
could foresee the creation of an implementation
and compliance body or committee, whose objective would be to review compliance of Contracting
Parties with their obligations set out under this
instrument, based on reports prepared by the flag
States at appropriate intervals. Contracting Parties
concerned about the impact of activities authorised by other Contracting Parties in ABNJ would
be able to raise these concerns in front of the implementation and compliance committee or body.
A procedure to allow civil society and NGOs to report on their concerns on specific activities could
also be foreseen, as it is already the case within the
Espoo Convention framework. Then, the implementation and compliance committee could prepare a report with some recommendations for the
Contracting Party concerned or decide to raise this
issue, with some advice, within the Conference of
the Parties or governing body of the international
instrument. The compliance requirements would
concern all human activities in ABNJ, but would
apply differently for activities already covered by
region- or sector-specific legally binding requirements (deep-sea bottom fisheries, seabed mining
in the Area, dumping of wastes and ocean fertilisation). Within these existing frameworks, the compliance procedures already in place would be first
to act. The “global compliance committee” would
be able to enter into the process if the Contracting Parties to the international agreements and
the representatives of civil society and NGOs raise
concerns with respect to compliance procedures
and results within existing organisations.
All these elements appear to be minimum requirements for a global instrument on EIAs in
ABNJ, in order for the instrument to function efficiently and not to be a mere replication of existing
and poorly implemented requirements. One issue
that still needs to be resolved is whether such an
instrument would also need to encompass SEAs.
Although they are less known than EIAs, SEAs
are being increasingly used and implemented all
across the globe. Adding this requirement into a
legally-binding global instrument would be extremely useful, in helping flag States and competent international organisations to assess the likely
impacts of their plans, policies and programmes.
IDDRI
STUDY 01/2013
4. CONCLUSION
The need for EIAs for human activities in ABNJ
appears at first to be one of the less controversial issues discussed within the BBNJ Working
Group. Although States do not entirely agree
on the practical implementation modalities of
this requirement (voluntary guidelines, sectoral
binding instruments, development of a global
agreement…), it will be one of the most important requirements included in any future international instrument on the conservation and
sustainable use of marine biodiversity in ABNJ. If
adequately and efficiently implemented, it would
help States to fulfil their obligation to implement
the precautionary and no-harm principles embodied in international environmental law. In this
respect, the processes underway within the UNGA
could benefit from the wide range of expertise on
EIAs already developed within terrestrial areas.
Studies conducted on this subject concluded that
in many cases, EIAs do not fulfil their objectives,
because they are considered as a decision-aiding
tool, or a mere procedural step, rather than as a
decision-making tool.142 It means that very often,
the decision-making authority considers that the
role of the EIA is to identify and mitigate significant adverse impacts and not to prevent the activity from being carried out if such impacts are
identified and cannot be adequately prevented.
The findings of an EIA are not “a central determinant of the decision on the action”.143 Jay et al., in
a 2007 study, noted that “the effectiveness of EIA
would be bolstered if a specific aim was to deliver ‘no
net environmental deterioration’ and, if this could
not be demonstrated, to require the application of
the precautionary principle in decision-making”.144
This very important consideration must be one of
the key elements for discussion within the BBNJ
Working Group and beyond.
The EIAs topic is therefore more complex than
it first seems and caution must be exerted before
rushing into the redaction of a global instrument
on the subject, to make sure that any requirement
on this issue will be efficient enough to provide
the best possible framework for their conduct.
One interesting point with this particular issue is
142.On this subject, see: Jay S., Jones C., Slinn P., Wood
C. (2007), “Environmental impact assessment: Retrospect and prospect”, Environmental Impact Assessment
Review 27, pp. 287-300.
143.Jay S., Jones C., Slinn P., Wood C. (2007), “Environmental impact assessment: Retrospect and prospect”,
Environmental Impact Assessment Review 27, p. 291.
144. Jay S., Jones C., Slinn P., Wood C. (2007), “Environmental impact assessment: Retrospect and prospect”,
Environmental Impact Assessment Review 27, p. 298.
37
Environmental impact assessments in areas beyond national jurisdiction
the variety of existing frameworks within which
such a global instrument could easily nest. Given the current state of play of international discussions, the first arena within which this issue
is being discussed is the BBNJ Working Group,
and many States and NGO representatives are
pushing for the inclusion of EIA requirements
in an implementing agreement to UNCLOS on
the conservation and sustainable use of marine
biodiversity in ABNJ. This option seems logical
as UNCLOS is the overarching legal framework
regulating all human activities in the oceans. But
if this option does not succeed, there are a number of “plan Bs” in existence, such as a Protocol
to the Espoo Convention and its Kiev Protocol, an
additional Protocol to the CBD or a stand-alone
legally-binding agreement.
One area of common ground (and therefore of
common concern) for all the options discussed
in this study is that they will all, in the end, rely
on flag State implementation. The competent
38
authority of the State of nationality of the company wishing to undertake a certain activity in
an ABNJ will be the one deciding whether or not
an activity will be subject to an EIA and, if so,
whether or not the proposed activity should be
authorised. An essential component of any global
instrument on EIAs in ABNJ will therefore be the
designation of appropriate rules to ensure that
flag States abide with their international obligations. This could be done through the establishment of a level of international scrutiny or of
compliance and safeguard mechanisms to ensure
consistency between flag State requirements in
order to avoid a phenomena of “forum shopping”.
The problem is that flag State implementation is
not always reliable, especially in the high seas.
But, in the meantime, one might also start to
question flag State responsibility in ABNJ and the
current lack of implementation of international
environmental requirements as well as poor records of compliance, enforcement and sanction. ❚
STUDY 01/2013
IDDRI
Environmental impact assessments in areas beyond national jurisdiction
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41
I D D R I ’ S P U B L I C AT I O N S
Environmental impact assessments
in areas beyond national jurisdiction
Elisabeth Druel (IDDRI)
mm E. Druel, P. Ricard, J. Rochette,
C. Martinez, “Governance of marine
biodiversity in areas beyond national
jurisdiction at the regional level:
filling the gaps - Case studies from
the North-East Atlantic, Southern
Ocean, Western Indian Ocean, South
West Pacific and the Sargasso Sea”,
IDDRI, Studies N°04/12.
mm J. Rochette, R. Billé, “Strengthening
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seas framework: a review of
potential modalities”, IDDRI, Studies
N°02/12.
mm E. Druel, R. Billé, S. Treyer, “A
legal scenario analysis for marine
protected areas in areas beyond
national jurisdiction”, IDDRI, Studies
N°06/11.
mm E. Druel, “Marine protected areas in
areas beyond national jurisdiction:
The state of play”, IDDRI, Working
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mm R. Billé, J. Rochette, E. Druel,
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Rio+20: where we must go”, IDDRI,
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To learn more on IDDRI’s publications and activities, visit www.iddri.org
T
he Institute for Sustainable Development and International Relations
(IDDRI) is a Paris based non-profit policy research institute. Its
objective is to develop and share key knowledge and tools for
analysing and shedding light on the strategic issues of sustainable
development from a global perspective.
Given the rising stakes of the issues posed by climate change and biodiversity loss,
IDDRI provides stakeholders with input for their reflection on global governance,
and also participates in work on reframing development pathways. A special
effort has been made to develop a partnership network with emerging countries
to better understand and share various perspectives on sustainable development
issues and governance.
For more effective action, IDDRI operates with a network of partners from
the private sector, academia, civil society and the public sector, not only in
France and Europe but also internationally. As an independent policy research
institute, IDDRI mobilises resources and expertise to disseminate the most
relevant scientific ideas and research ahead of negotiations and decision-making
processes. It applies a crosscutting approach to its work, which focuses on five
threads: global governance, climate change, biodiversity, urban fabric, and
agriculture.
IDDRI issues a range of own publications. With its Working Papers collection,
it quickly circulates texts which are the responsibility of their authors; Policy
Briefs summarize the ideas of scientific debates or issues under discussion in
international forums and examine controversies; Studies go deeper into a specific
topic. IDDRI also develops scientific and editorial partnerships: among others,
A Planet for Life. Sustainable Development in Action is the result of collaboration
with the French Development Agency (AFD) and The Energy and Resources
Institute (TERI), and editorial partnership with Armand Colin for its French
edition, Regards sur la Terre.
To learn more on IDDRI’s publications and activities, visit www.iddri.org

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