Reflections on Environmental Impact Assessment and Marine Protected Areas 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 New York, 31 May – 3 June 2011 by Harlan Cohen Advisor, Ocean Governance and International Institutions IUCN International Union for Conservation of Nature International Union for Conservation of Nature
UN Convention on the Law of the Sea • A Constitution for the Oceans • Need to consider as a whole • Part XIV Development and Transfer of Marine Technology • Part XIII Marine Scientific Research • Part XII Protection and Preservation of the Marine Environment • Part XI The Area • Part VII High Seas International Union for Conservation of Nature
Requirement for Assessment • Article 206 of UNCLOS: States to assess potential effects of planned activities under their jurisdiction or control that may cause substantial pollution of or significant and harmful changes to marine environment. • Article 1(4) of UNCLOS defines pollution to include introduction of substances or energy into the marine environment. As noise is energy, planned activities with the potential to cause noise also to be assessed. International Union for Conservation of Nature
Assessment Obligations • Under London Convention and Protocol (LC/LP) on Prevention of Marine Pollution by Dumping of Wastes and Other Matter Parties to assess the need for and potential impacts of allowed activities, including the assessment of potential adverse environmental effects and alternatives. • Protocol specifies that assessments also consider human health risks and future uses of the area. • Article 210 of UNCLOS provides that States to act through competent int’l organization, which is LC/LP. International Union for Conservation of Nature
Fisheries: Duty to Cooperate • Articles 118 and 119 of UNCLOS provide that States have a duty to cooperate in the conservation and management of the living resources of the high seas • Also to take into consideration effects of dependent or associated species. • This implies assessment, otherwise it would not be possible to take into consideration all of the information necessary to meet these obligations. International Union for Conservation of Nature
Fisheries: Fish Stocks Agreement • Parties to the United Nations Fish Stocks Agreement have accepted under Article 5 an obligation to “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”. International Union for Conservation of Nature
Fisheries: Deep-Sea • UNGA Resolutions 61/105 and 64/72 States agreed to require assessments of whether individual bottom fishing activities would have significant adverse impacts on vulnerable marine ecosystems, and to ensure that if so assessed the activities are managed to prevent such impacts or not authorized to proceed • FAO International Guidelines for the Management of Deep- sea Fisheries in the High Seas provide guidance • FAO Guidelines include description of significant adverse impacts and guidance on data, reporting and assessment • Guidelines refer both to stock assessment and to assessing significant adverse impacts on vulnerable marine ecosystems International Union for Conservation of Nature
FAO Guidelines: Significant Adverse Impacts • Significant adverse impacts are those that compromise ecosystem integrity (ecosystem structure or function) such that: (i) impairs ability of affected populations to replace themselves; (ii) degrades long-term natural productivity of habitats; (iii) causes, on more than temporary basis, significant loss of species richness, habitat or community types. Impacts to be evaluated individually, in combination and cumulatively. International Union for Conservation of Nature
FAO Guidelines: Significant Adverse Impacts • 18. When determining scale and significance of impact, following six factors to be considered: – i. intensity or severity of impact at specific site; – ii. spatial extent of impact relative to the availability of habitat type affected; – iii. sensitivity/vulnerability of the ecosystem to the impact; – iv. ability of an ecosystem to recover from harm, and rate of recovery; – v. extent to which ecosystem functions may be altered by impact; – vi. timing and duration of the impact International Union for Conservation of Nature
FAO Guidelines: Temporary Impacts • Temporary impacts are those limited in duration and that allow the particular ecosystem to recover over acceptable time frame, on a case- by-case basis and in the order of 5-20 years • In determining whether an impact is temporary, both the duration and the frequency of impact is repeated should be considered. With limited information, States and RFMO/As should apply precautionary approach International Union for Conservation of Nature
International Seabed Authority: Mining Code • Mining Code: comprehensive set of rules, regulations and procedures by the Authority to regulate prospecting, exploration, exploitation of minerals in the Area; not yet complete • Regulations adopted so far include such requirements as: – general description and schedule of proposed exploration program,... – description of the program for oceanographic and environmental baseline studies... and any environmental rules, regulations and procedures ... that would enable assessment of potential environmental impact of proposed exploration activities,... – preliminary assessment of possible impact of the proposed exploration activities on marine environment; – description of proposed measures for prevention, reduction and control of pollution and other hazards, as well as possible impacts, to marine environment;... International Union for Conservation of Nature
Regional Approaches • Antarctic Treaty w/ Protocol on Environmental Protection • Regional Fisheries and Regional Seas Agreements • UN Economic Commission for Europe Agreements, viz.: – Espoo Convention on Environmental Impact Assessment in a Transboundary Context – Kiev Protocol on Strategic Environmental Assessment – Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters – Kiev Protocol on Pollutant Release and Transfer Registers International Union for Conservation of Nature
Protocol on Environmental Protection to the Antarctic Treaty • Article 8 and Annex I on application of environmental impact assessment • Provides example also for areas beyond national jurisdiction • Level of assessment depends on whether likely impact will be: – Less than minor or transitory – Minor or transitory – More than minor or transitory – CEE or IEE International Union for Conservation of Nature
Espoo Convention • Parties to prepare and share environmental impact assessments for certain proposed activities likely to cause a significant adverse trans boundary impact International Union for Conservation of Nature
CBD • At 8 th COP, Parties endorsed voluntary guidelines on biodiversity-inclusive environmental impact assessment to serve as guidance • Parties also endorsed draft guidance on biodiversity-inclusive strategic environmental assessment • CBD organized an Expert Workshop on Scientific and Technical Aspects Relevant to Environmental Impact Assessment in Marine Areas beyond National Jurisdiction in Manila in November 2009 International Union for Conservation of Nature
CBD, Cont. • Manila Workshop inter alia concluded existing Guidelines may need to be modified, though not always in large ways • At 10 th COP decision to facilitate development of voluntary guidelines for EIA and SEA in marine and coastal areas and submit for consideration • Currently underway • CBD lunch-time side event on Tuesday for more information International Union for Conservation of Nature
UNEP Goals and Principles on EIA • States should not undertake or authorize activities without prior consideration of environmental effects • Comprehensive environmental impact assessment to be done when proposed activity likely to significantly affect environment • States to notify, exchange information, and consult on potential environmental effects of activities under control or jurisdiction likely to significantly affect other States or areas beyond national jurisdiction • States to provide opportunity for comment by experts, public • Decision on proposed activity in writing and to include reasons and provisions to prevent, reduce, mitigate environmental damage • Decision to be made available to those interested International Union for Conservation of Nature
Strategic Environmental Assessment (SEA) • SEA provides for incorporating environmental considerations into proposed program, plans and policies • SEA to be conducted at appropriate spatial and temporal scales • SEA provides for coordination and management of multiple uses of same space, can be helpful to address potential cumulative impacts of different activities • SEA is iterative, can allow for modification over time and as necessary International Union for Conservation of Nature
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