United Nations - General Assembly: Ad-Hoc Open-ended Informal WG to study issues relating to the conservation and sustainable use of marine biological diversity beyond areas of national jurisdiction - Agenda item 5(a) (New York)

Intervention on behalf of the European Union by Mr. Marko Rakovec, Second Secretary Legal Adviser at the Permanent Mission of Slovenia to the United Nations

1. The EU views that evidence of ongoing destruction of marine ecosystems is overwhelming and that enough is known about growing human pressures on marine biodiversity in ABNJ to warrant taking urgent steps for protection and conservation of marine biodiversity in ABNJ. The EU has focused during the first meeting of the UNWG BBNJ on substantively discussing these problems. Since then it became evident that anthropogenic impacts on marine biodiversity have aggravated, including by the problem of global climate change. The EU wishes to focus in its intervention on this agenda item on presenting possible solution for addressing the identified problems.

2. The EU has identified three core problems in relation to the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction:

1. the lack of implementation of existing commitments at sectoral level,
2. the existence of governance and regulatory gaps, and
3. the absence of an integrated regime for the protection and conservation of marine biodiversity in ABNJ.

This leads to following problems:

• some activities in ABNJ are de facto unregulated or insufficiently regulated;
• lack of overarching institutional mechanisms to ensure consistent application of modern governance principles (e.g. precautionary approach, ecosystem approach) in ABNJ;
• lack of a mechanism to effectively address the necessary coordination and cooperation between international institutions with narrowly defined scope (i.e. in terms of sectoral or geographical coverage or participation in the regime);
• lack of a mechanism to assess and address cumulative impacts of human activities in ABNJ, or to establish and manage multi-purpose management tools such as MPAs;
• lack of a process to provide a structural review of implementation of management measures.

3. In the absence of an integrated regime for the protection of marine biodiversity in ABNJ, the EU sees an urgent need to apply, within the existing policy frameworks, modern policy instruments/tools for conservation and sustainable use of marine biodiversity in ABNJ. Such instruments/tools include area based management tools, as well as  Environmental Impact assessment (EIA) and Strategic Environmental Assessment (SEA). Under this agenda item 5(a) I would like to address the latter two instruments in particular.

4. Environmental impact assessment (EIA) and strategic environmental assessment (SEA)  can help to assess and control human impacts on marine biodiversity in ABNJ, by defining a procedure for determining the extent of (cumulative) impacts on marine biodiversity in ABNJ as a result of a (number of) human activity(ies), and by establishing criteria according to which such activities are allowed to proceed.

5. Different applicable international regimes contain general provisions for the assessment of environmental impacts, including UNCLOS, and the CBD. The Espoo convention addresses the Environmental Impact Assessment in a Transboundary Context but does not apply to areas beyond national jurisdiction.

6. Under Articles 204-206 of UNCLOS, States are to assess the potential effects of activities under their jurisdiction or control which may cause substantial pollution of, and/or significant or harmful changes to, the marine environment. Such results are to be communicated through reports to competent international organizations and made available to all States.

7. In ABNJ, the CBD article 4 in combination with article 14.1, requires Parties to assess the consequences of their actions and to conduct EIA of proposed projects under their jurisdiction or control when these are likely to have significant adverse effects on biodiversity, with a view to avoiding or minimizing such effects and, where appropriate, allow for public participation in such procedure. The CBD also encourages the conclusion of bilateral, regional and multilateral arrangements as appropriate.

8. These duties in relation to the assessment of impacts on the marine environment, as contained in article 204-206 of UNCLOS and articles 14.1 (a) and (c) of the CBD are quite general and open to interpretation. It should be noted however that the CBD COP has further elaborated on Art 14 by adopting several decisions concerning impact assessment, including decision VIII/28, which endorsed the voluntary guidelines on biodiversity-inclusive impact assessment for both project and strategic level impact assessment. Nevertheless, further elaboration and specificity would be needed.

9. The EIA/SEA tool is further being developed and applied for marine biodiversity in ABNJ within some current sectoral and regional settings:

• Sectoral example 1: Fisheries – UNGA Res 61/105 on sustainable fisheries. The resolution calls for (§83) the prior assessment of individual bottom fishing activities to determine whether they would have significant adverse impacts on vulnerable marine ecosystems. If such impacts would occur, they must be prevented or the activities are not allowed to proceed. The resolution calls for the implementation of these measures by RFMOs and Flag States. International guidelines for the management of deep-sea fisheries in the high seas are being developed within FAO that will provide guidance to RFMOs and Flag States, inter alia, for preventing significant adverse impacts on vulnerable marine ecosystems.
• Sectoral Example 2: Dumping – under the London Convention of 1972 and its Protocol of 1996, no permits for dumping of wastes and other matter are to be issued absent a comprehensive evaluation of potential impacts and means to avoid, prevent or minimize them.
• Regional example 1: Antarctic. The Madrid Protocol on Environmental Protection to the Antarctic Treaty mechanism requires advance notification and prior and cumulative impact assessment of human activities in a given area. The Madrid Protocol differentiates the assessment procedure for different expected levels of impacts, and requires remedies in case of environmental damage.
• Regional example 2: OSPAR. The OSPAR Convention for the Northeast Atlantic produces every ten years its Quality Status Report, which takes into account the cumulative effects of human activities. In light of these cumulative effects, OSPAR suggests management actions and measures be taken. While not exactly a SEA, this is similar to one in many regards.

10. The EU is in favour of further progressing EIA/SEA to all activities or processes with a potential to adversely impact on marine biodiversity in ABNJ through the above-mentioned existing sectoral and regional competent institutions and policy frameworks. The EU calls for, and is committed to, the swift and full implementation of UNGA Resolution 61/105. Furthermore, the EU calls on FAO and States to rapidly complete the international guidelines for the management of deep-sea fisheries in the high seas in order to facilitate this process. 

11. While arguing for the full use of existing competent institutions, the EU wishes to signal three issues of importance:

• Sectoral EIA processes do not allow for cumulative impact assessment. Sectoral EIA processes are not geared towards the assessment of the joint impacts from e.g. fishing, climate change, and pollution.  For example the process underway in FAO/RFMOs will help to protect vulnerable marine ecosystems (VMEs) against significant adverse impacts from deep-sea fishing. But is seems unreasonable to expect that, fisheries authorities be required to address cumulative impacts from mining, cable infrastructure and pollution on those VMEs, when there is no mechanism or coordination procedure in place to assess such impacts jointly.
• Some activities do not clearly fit within given sectoral frameworks. For example discussions are ongoing whether or not direct human induced ocean fertilisation efforts (e.g. with iron or urea) are covered by the London Convention/Protocol. Possible further examples in this category include other climate change mitigation techniques, the laying of cables and pipelines, the management of discrete high seas fish stocks, floating energy and aquaculture facilities, marine scientific research and bioprospecting, and ocean noise.
• Different sectoral EIA processes apply different standards, criteria and procedures.

12. The EU therefore believes the following additional steps are necessary:

(1) The EU would like to further specify and implement the UNCLOS and CBD general provisions for the assessment of environmental impacts in ABNJ. The EU supports initiatives for the introduction or consolidation of provisions on EIA in sectoral or regional instruments. Building on those efforts, the EU would like to propose further that States, either in the setting of this Working Group, or in the context of the CBD, cooperate to develop guidelines for the implementation of EIA/SEA for activities which have a potential to adversely impact marine BBNJ, including the requirement for prior notification of such planned activities. Such guidelines could aim at:

• Guiding States to adequately regulate actions carried out in ABNJ under their jurisdiction or control, in order to prevent significant adverse impacts on marine biodiversity in ABNJ, in accordance with the existing CBD requirements;
• Providing guidance for the regulation of activities which are de facto unregulated, or insufficiently regulated, while also providing an EIA/SEA mechanism for any possible new and emerging activities in ABNJ; and
• Setting out a procedure for addressing cumulative impacts across sectors.

(2) Furthermore, the EU would be ready to consider the possibility that, either through the setting up of new body or via the extension of the scope and mandate of existing institutions or processes, a mechanism / system should be established, which would provide for, inter alia:

• regular, policy relevant, scientific assessments of the state of the marine environment on a comprehensive, objective, open and transparent basis, building on the work of the Regular Process/GRAME, IMOSEB, MEA and the IPCC, as well as of the existing scientific initiatives;
• timely advice with respect to the individual and cumulative impacts of human activities and emerging threats, including through providing the expertise for review of EIAs/SEAs; and
• recommendations for research to address information gaps.

The current and predicted impacts of climate change, and its synergistic effects with other stressors, such as overfishing, pollution and habitat degradation, add a new imperative to further our understanding and application of the best available science, and such a body, would provide a key mechanism to do so. The EU believes that an intergovernmental component of such a body or a mechanism would provide much needed legitimacy and policy relevance for decision makers. Such prospect could usefully be discussed in the UNGA framework in 2009, when the GA is to decide on options for a regular assessment process.

13. The EU fully recognizes the problem of the absence of EIA/SEA provisions regulating activities in many areas of the high seas and of a mechanism to assess cumulative impacts of all human activities in ABNJ. In order to adequately regulate actions in ABNJ, within national jurisdiction or control of States, so to prevent significant adverse impacts on marine biodiversity, the need exists for creating a mechanism through the development of guidelines for assessing environmental impacts of all uses and activities in ABNJ.