Delegates Discuss Guidelines for Content of Environmental Impact Assessment Reports, as Negotiations on New High Seas Treaty Enter Second Week
The Intergovernmental Conference to draft a legally binding instrument on the conservation and sustainable use of marine biological diversity began its second week today, with delegates considering how that treaty should reflect the content of environmental impact assessment reports.
Delegates generally agreed that details regarding the required content of such reports should not be developed at a later stage.
Opinions differed, however, over how much detail the implementing agreement should contain on them, with the European Union’s delegate saying she could support a provision outlining the basic content of an environmental impact assessment report: descriptions of planned activities; reasonable alternatives to those activities; results of the scoping exercise; and the potential effects of the planned activities on the marine environment, including the cumulative impacts and any transboundary impacts. Generally, she said, environmental impact assessment reports should contain clear, unambiguous and succinct language that has the best chance of being put into practice under the new agreement.
Outlining the position of the “Group of 77” developing countries and China, the observer for the State of Palestine said the question of content of those reports hinges on where to strike the balance required for inclusion in the new instrument.
Uruguay’s delegate, on behalf of the Latin American Like-Minded States, said some of the proposed detail on the alternatives to planned or proposed activities is not appropriate for inclusion in a treaty. Only the essential principles and guidelines for the environmental impact assessment report content should be included in a legally binding instrument. Another document can be drawn up by the body provided for in the treaty to elaborate further detail.
Amid calls for clarity around the difference between “planned” and proposed” activity, Switzerland’s delegate, stressing that “less is more”, said any description of effects of planned activities should include those from transboundary impacts.
Along those lines, Eritrea’s delegate said that, for the new instrument to achieve its potential, it should create a scientific body to conduct environmental impact assessments and produce guidelines and methodologies for those assessments. Any planned or proposed activities must be subject to evaluation and review. However, it is still unclear whether permission or license for an area beyond the limits of national jurisdiction is granted to State parties, business entities or business entities through State parties.
Algeria’s delegate, on behalf of the African Group, said his delegation could be flexible to support a description of the environment likely to be affected by an activity if there is appetite from others to do likewise. Along with the representative of the Solomon Islands, speaking on behalf of the Pacific small island developing States, he voiced support for including a description of socioeconomic impacts generated by an authorized activity.
That idea generated discussion, with Australia’s representative stressing that environmental impact assessment reports cover environmental issues only; social and socioeconomic elements fall outside that scope. The representative of the United States likewise said he could not support assessing social or socioeconomic impacts. Nor could he support including the environmental record of the “proponent” of an activity in any description of measures for avoiding, preventing, mitigating and redressing any substantial pollution of or harmful changes to the marine environment, as it is unclear what is meant by “environmental record” and how it relates to an assessment of an activity.
The representative of Trinidad and Tobago, on behalf of the Caribbean Community (CARICOM), nevertheless said he would like to see some level of detail on environmental impact assessment report content included in the implementing agreement. “We like that we have something to work with and develop upon,” he said. He advocated including a description of the range of potential environmental and social impacts of an activity and its alternatives, as well as an estimation of its significance.
The representative of the International Union for Conservation of Nature and Natural Resources asked delegates to consider including a description of the environment likely to be affected, as it captures an element of redressing harm that could stem from a proposed activity. Biodiversity offsets can be an appropriate form of redress. Their goal is to achieve no net loss, and preferably a net gain, of biodiversity on the ground or in the water.
Regardless of the option chosen, the implementing agreement should seek to streamline environmental impact assessment processes, said the representative of the International Cable Protection Committee. He agreed on the need for clear, concise elements in environmental impact assessment reports that can be implemented in an effective manner. There should be sufficient flexibility in defining planned activities so that future contingencies, like repairs, are not hamstrung by lengthy processes. Review of a business plan for planned activities fall beyond the scope of an environmental impact assessment.
As negotiations continued into the afternoon, speakers deliberated monitoring, reporting and review processes related to environmental impact assessments, as well as ways to ensure compliance. While many delegates agreed that the latter is a cross-cutting issue, some said it is too early to know whether a separate “compliance committee” will be required.
Papua New Guinea’s representative, associating himself with the Group of 77 and the Pacific small islands developing States, underscored the importance of substantively addressing the concerns of adjacent coastal States — and of those States that have made submissions to the Commission on the Limits of the Continental Shelf — in processes related to environmental impact assessments. Such countries have a special interest in the compliance process, he stressed, proposing the inclusion of a system of prior notification.
Indonesia’s representative echoed those sentiments, emphasizing that adjacent coastal States should be actively consulted in the compliance process. He also proposed various modifications to the proposed language on monitoring, reporting and review.
The representative of Australia agreed with the need to address the interests of adjacent coastal States, but said such issues would be better captured in a separate section of the treaty focused on “process”. He also joined a discussion on the various types of — and reasons for — monitoring and surveillance in areas beyond national jurisdiction, drawing a distinction between the monitoring and reporting activities that a State would require from the proponent of proposed activities, as compared to other types of monitoring.
Jamaica’s delegate, associating herself with CARICOM, echoed support for the inclusion of language spotlighting the express role of proponents.
The representative of Singapore recalled that all surveillance undertaken in line with the provisions of the Convention on the Law of the Sea must be submitted to competent international organizations. A clearinghouse mechanism could serve as a “meta-database” in that regard. Provisions of the Convention can be used as a source of inspiration, he added, emphasizing that “we are not operating in a complete vacuum” regarding normative guidance.
With regard to the section on compliance, China’s representative agreed with other speakers that compliance is cross-cutting in nature. He stressed that, if established, a compliance committee or similar mechanism should adopt a non‑adversarial approach to the matter of compliance by States.
The representative of the Natural Resources Defence Council, speaking on behalf of the High Seas Alliance, echoed that sentiment. She proposed the use of the word “implementation” rather than “compliance”, including in the name of any subsidiary body established.
Canada’s delegate stressed that the responsibility to ensure such compliance rests with State Parties to the Convention on the Law of the Sea. She proposed eliminating a reference to the Convention’s articles 204 and 206 and did not support a process calling for other States or regional organizations to determine cases of non-compliance.
Participants also turned their attention to a brief section of the draft on strategic environmental assessments, with some delegates — including those of the Republic of Korea, United States, Uruguay (on behalf of Latin American Like-Minded States) and Trinidad and Tobago (on behalf of CARICOM) — citing a lack of clarity on that concept. Several speakers called for additional study into the relevance of such instruments.
The representative of the Russian Federation said his delegation remains unconvinced that the concept of strategic environmental assessments — which was developed under simpler conditions related to areas under national jurisdiction — would be applicable in areas of the ocean beyond national scope. In that regard, he voiced support for the option of including no text related to strategic environmental assessments.
Striking a different tone, Nigeria’s representative said the field of science has advanced sufficiently to understand that strategic environmental assessments are required. He voiced support for the inclusion of two proposed text options on that topic, as well as for the development of a list of criteria for the types of activities which would necessitate strategic environmental assessments.
The representative of the European Union supported proposed language on general obligations for strategic environmental assessments. However, she underlined the need to reference States Parties both individually and collectively with a view to ensuring regional and sectoral cooperation. In that vein, she also supported language that would allow Sates Parties to develop more specific rules and conditions for strategic environmental assessments, which would help to “future-proof” the new treaty against emerging challenges.
Turning to a section of the draft text on which types of activities would necessitate environmental impact assessments, she said that threshold is laid out in article 206 of the Convention, relating to the substantial pollution of, or harmful changes to, the marine environment.
The observer for the Holy See, expressing support for the threshold definitions described in article 206 of the Convention, proposed adding several additional provisions. One related to activities with “actual value” — namely, those requiring resource extraction — which she said would always necessitate an environmental impact assessment.
Several speakers suggested that an indicative list of activities requiring such assessments could be annexed to the treaty. Others, however, warned against allowing such a list to become a sticking point in negotiations.
Also speaking today were representatives of the Federated States of Micronesia, India, Norway, Cameroon, New Zealand, Philippines, Monaco, Marshall Islands, Sri Lanka, Morocco, Iran, Japan, Switzerland and Chile.
Representatives of the Food and Agriculture Organization (FAO), Greenpeace International (on behalf of the High Seas Alliance) and Worldwide Fund for Nature also participated.