Protecting the Wild Ocean : Developing Legal and Institutional Arrangements for Environmental Impact Assessment in Marine Areas Beyond National Jurisdiction Dr. Robin Warner Australian National Centre for Ocean Resources and Security University of Wollongong, NSW, Australia

Why do we need to protect the marine environment in areas beyond national jurisdiction?

The ocean is our planetary life- support system Provides 50% of oxygen Regulates climate, weather & water Absorbs CO 2 Regenerates and supplies nutrients to the sunlit zone Provides almost 20% of the world’s total animal protein IUCN - Global Marine Programme

The problems of ocean space are closely interrelated and need to be considered as a whole (UN General Assembly Resolution 1970). IUCN - Global Marine Programme

Human impacts are increasing Halpern et al., 2008 IUCN - Global Marine Programme

Resources are exhausted IUCN - Global Marine Programme

Ocean transport spreading IUCN - Global Marine Programme

Ocean garbage patches growing IUCN - Global Marine Programme

Growing threats from climate change…. IUCN - Global Marine Programme UNEP, In Dead Water, 2008

And new uses are emerging IUCN - Global Marine Programme Jack Cook, WHOI Graphics

Modern norms and tools Transparency Transparency Participation Participation Equity Equity Accountability Accountability IUCN - Global Marine Programme Ecosystem approach Ecosystem approach Precautionary approach Precautionary approach Responsible use Responsible use Integrated management Integrated management Science-based decision making Science-based decision making Environmental impact assessments and strategic environmental assessments Environmental impact assessments and strategic environmental assessments Area-based management, including representative MPA networks Area-based management, including representative MPA networks © Emanuel João Gonçalves

Environmental Impact Assessment An EIA is an assessment of the potential impact that a proposed project/activity may have on the environment, considering natural, social and economic aspects. An EIA is an assessment of the potential impact that a proposed project/activity may have on the environment, considering natural, social and economic aspects. Normally takes the form of a set of procedures/commitments which reflect the principle that decisions affecting the environment should be made in the light of a comprehensive understanding of their effects. Normally takes the form of a set of procedures/commitments which reflect the principle that decisions affecting the environment should be made in the light of a comprehensive understanding of their effects.

EIA and Marine Areas Beyond National Jurisdiction What are the international legal obligations to conduct EIAs for decisions/activities with the potential to affect marine areas beyond national jurisdiction? What are the international legal obligations to conduct EIAs for decisions/activities with the potential to affect marine areas beyond national jurisdiction? Do decision makers have to account for the political and scientific views of the wider international community including States, international organizations and non governmental actors? Do decision makers have to account for the political and scientific views of the wider international community including States, international organizations and non governmental actors?

EIA Commitments in International Law EIA processes at the international level were considered as early as the 1972 Stockholm Declaration on the Human Environment. EIA processes at the international level were considered as early as the 1972 Stockholm Declaration on the Human Environment. EIA commitments are now contained in a wide array of hard and soft international instruments addressing a broad range of environmental issues and geographic contexts. EIA commitments are now contained in a wide array of hard and soft international instruments addressing a broad range of environmental issues and geographic contexts.

Sources of EIA Commitments for Marine Areas Beyond National Jurisdiction General international law principles General international law principles Binding and non binding international instruments Binding and non binding international instruments

General Principles of International Law Customary international law duties of harm prevention and cooperation in trans-boundary matters support the existence of a customary international law obligation to conduct EIAs of potentially harmful activities. Customary international law duties of harm prevention and cooperation in trans-boundary matters support the existence of a customary international law obligation to conduct EIAs of potentially harmful activities. Due diligence requires that a State inform itself of the environmental consequences of potentially harmful activities and the duties of notification and consultation further imply that this information be shared with other States. Due diligence requires that a State inform itself of the environmental consequences of potentially harmful activities and the duties of notification and consultation further imply that this information be shared with other States.

Rio Declaration Principle 2 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 and developmental 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

General Principles of International Law The International Law Commission Draft Articles on Prevention of Transboundary Harm (2001) require States prior to the authorization of an activity that presents a risk of significant transboundary harm to conduct an assessment of the possible transboundary harm caused by that activity including an EIA. The International Law Commission Draft Articles on Prevention of Transboundary Harm (2001) require States prior to the authorization of an activity that presents a risk of significant transboundary harm to conduct an assessment of the possible transboundary harm caused by that activity including an EIA. State practice however does not generally reflect a feeling of obligation on the part of States to notify other States or competent international organizations of the effects of potentially harmful activities on the marine environment beyond national jurisdiction in the absence of specific treaty obligations to do so. State practice however does not generally reflect a feeling of obligation on the part of States to notify other States or competent international organizations of the effects of potentially harmful activities on the marine environment beyond national jurisdiction in the absence of specific treaty obligations to do so.

EIA Commitments in Instruments Relating to Marine Areas beyond National Jurisdiction 1982 UN Convention on the Law of the Sea (LOSC) 1982 UN Convention on the Law of the Sea (LOSC) 1991 Antarctic Environmental Protocol (Madrid Protocol) 1991 Antarctic Environmental Protocol (Madrid Protocol) ISBA Polymetallic Nodule Regs. ISBA Polymetallic Nodule Regs. Arctic EIA Guidelines Arctic EIA Guidelines CBD Voluntary Biodiversity Inclusive Impact Assessment Guidelines CBD Voluntary Biodiversity Inclusive Impact Assessment Guidelines

1982 UN Convention on the Law of the Sea (LOSC) Article 206 Where 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 reports of the results of such assessments in the manner provided in Art 205.

1982 LOSC Art. 205 States shall publish reports of the results obtained…or provide such reports at appropriate intervals to the competent international organizations which should make them available to all States.

1991 Madrid Protocol to the Antarctic Treaty The Madrid Protocol regulates the comprehensive protection of the Antarctic environment. The Madrid Protocol regulates the comprehensive protection of the Antarctic environment. Focus is on avoiding or minimizing the adverse impacts of planned activities on the whole of the Antarctic Treaty area (60 degrees south and below). Focus is on avoiding or minimizing the adverse impacts of planned activities on the whole of the Antarctic Treaty area (60 degrees south and below). International law basis for imposition of EIA obligations is the duty on States to prevent harm to a global commons resource. International law basis for imposition of EIA obligations is the duty on States to prevent harm to a global commons resource.

Madrid Protocol to Antarctic Treaty EIA required where an activity has at least a “minor or transitory impact” on the Antarctic environment (Art. 8(1)). EIA required where an activity has at least a “minor or transitory impact” on the Antarctic environment (Art. 8(1)). Madrid Protocol contains specific rules for the conduct of EIAs in Annex I depending on whether the activity has: Madrid Protocol contains specific rules for the conduct of EIAs in Annex I depending on whether the activity has: –Less than a minor or transitory impact –A minor or transitory impact –More than a minor or transitory impact on the Antarctic environment.

ISBA Polymetallic Nodule Regulations States or State sponsored entities submitting plans of work for exploration in the Area must submit a description of their proposed programmes for oceanographic and environmental baseline studies that would enable an assessment of the potential environmental impact of the proposed activities on the marine environment. States or State sponsored entities submitting plans of work for exploration in the Area must submit a description of their proposed programmes for oceanographic and environmental baseline studies that would enable an assessment of the potential environmental impact of the proposed activities on the marine environment. Ongoing reports monitoring impacts on the marine environment are also required. Ongoing reports monitoring impacts on the marine environment are also required.

1997 Arctic EIA Guidelines The Arctic States have adopted a set of guidelines to conduct EIA under the auspices of the Arctic Environmental Protection Strategy. The Arctic States have adopted a set of guidelines to conduct EIA under the auspices of the Arctic Environmental Protection Strategy. Non binding and used as a template. Non binding and used as a template. “Adaptation rules” (Koivurova) “Adaptation rules” (Koivurova)

Global and Domestic EIA Systems Those States with developed domestic EIA processes are more likely to accept and implement international EIA commitments through integrating them into their domestic systems. Those States with developed domestic EIA processes are more likely to accept and implement international EIA commitments through integrating them into their domestic systems. Relatively few activities which have the potential to adversely impact marine areas beyond national jurisdiction are subject to EIA processes. Relatively few activities which have the potential to adversely impact marine areas beyond national jurisdiction are subject to EIA processes.

Components of EIA Obligations Screening/threshold requirements for conducting an EIA. Screening/threshold requirements for conducting an EIA. Scope and content of EIA report. Scope and content of EIA report. Notification and consultation. Notification and consultation. Public participation in decision making Public participation in decision making Final decision on activity – prohibition, compliance with EIA report and recommended harm minimisation measures. Final decision on activity – prohibition, compliance with EIA report and recommended harm minimisation measures. Through and post project monitoring. Through and post project monitoring.

Screening of Activities List of activities which will be subject to EIA including: List of activities which will be subject to EIA including: –deep sea fishing –dumping of waste –climate change mitigation activities –offshore hydrocarbon production –bio-prospecting –marine scientific research –laying of submarine cables and pipelines –ballast water exchange –deep sea tourism expeditions; –and ocean energy operations

Screening of Activities Criteria to assist States in determining which other activities are likely to have significant adverse effects on the environment beyond national jurisdiction might include: –Is the proposed activity located in or close to an area of special environmental sensitivity or representative international importance? –Would the intended activity affect the biophysical environment directly or indirectly in such a manner that it will increase risks of extinction of genotypes, cultivars, varieties populations of species or the chance of loss of habitat or ecosystems? –Would the intended activity surpass the maximum sustainable yield i.e. the carrying capacity of a habitat/ecosystem or the maximum allowable disturbance level of a resource, population or ecosystem?

Scoping of Activities The scope and content of EIAs for activities likely to have a significant adverse effect on marine areas beyond national jurisdiction could follow the general framework of EIAs but also incorporate examination of impacts and alternatives which take into account the shared interests of the international community in the long term sustainability of marine resources, continuing marine scientific research and the stability of global climate.

Notification and Public Participation in EIAs The duty of States to notify other States and competent international organizations of planned activities under their jurisdiction or control which may have a significant adverse effect on marine areas beyond national jurisdiction could be incorporated in guidelines or an instrument on EIA The duty of States to notify other States and competent international organizations of planned activities under their jurisdiction or control which may have a significant adverse effect on marine areas beyond national jurisdiction could be incorporated in guidelines or an instrument on EIA A more defined role could also be promoted for regional seas organizations as dissemination points and consultation hubs for the results of EIAs and as technical advisers on mitigation measures. A more defined role could also be promoted for regional seas organizations as dissemination points and consultation hubs for the results of EIAs and as technical advisers on mitigation measures.

Post Assessment Obligations and Decision Making At present it is possible for a State or non State actor to proceed with activities which may have significant adverse effects on marine areas beyond national jurisdiction to the detriment of current and future generations. At present it is possible for a State or non State actor to proceed with activities which may have significant adverse effects on marine areas beyond national jurisdiction to the detriment of current and future generations. The question is whether there should be global and regional bodies with veto powers over those activities which are assessed as likely to have a significant adverse effect on marine areas beyond national jurisdiction. The question is whether there should be global and regional bodies with veto powers over those activities which are assessed as likely to have a significant adverse effect on marine areas beyond national jurisdiction.

Through and Post Activity Monitoring of Environmental Impacts and Compliance with Mitigation Measures For activities assessed as likely to have significant adverse effects on marine areas beyond national jurisdiction, programmes should be developed to monitor ongoing environmental impacts and compliance with mitigation measures. For activities assessed as likely to have significant adverse effects on marine areas beyond national jurisdiction, programmes should be developed to monitor ongoing environmental impacts and compliance with mitigation measures. This process could involve referring the proponents of such activities to competent international, regional or sectoral organizations such as the regional seas organizations, RFMOs, IMO, CBD and FAO to collaborate in the development of monitoring programmes. This process could involve referring the proponents of such activities to competent international, regional or sectoral organizations such as the regional seas organizations, RFMOs, IMO, CBD and FAO to collaborate in the development of monitoring programmes.

International Discussions on EIAs in Marine Areas Beyond National Jurisdiction October 2007 IUCN High Seas Workshop October 2007 IUCN High Seas Workshop BBNJ Working Group 2008 BBNJ Working Group 2008 COP CBD COP CBD CBD Expert Workshop on EIA Guidelines for Marine Areas Beyond National Jurisdiction – November 2009 CBD Expert Workshop on EIA Guidelines for Marine Areas Beyond National Jurisdiction – November 2009 BBNJ Working Group 2010 and UNGA 2010 BBNJ Working Group 2010 and UNGA 2010