Opening Second Week of Conference to Draft Marine Biological Diversity Treaty, Delegates Focus on How Instrument Addresses Environmental Impact Assessments
The intergovernmental conference drafting a legally binding treaty under the 1982 United Nations Convention on the Law of the Sea governing marine biodiversity in ocean waters beyond national jurisdiction entered its second week at Headquarters today with speakers discussing turning their attention to how the instrument will address environmental impact assessments.
Delegates largely focused their remarks on the obligation of States to conduct environmental impact assessments; the new treaty’s relationship to environmental impact assessment processes under relevant instruments, frameworks and bodies; and activities for which assessments will be required.
Egypt’s representative, speaking on behalf of the “Group of 77” developing countries and China, said the legal basis for environmental impact assessments rests in the provisions of the Convention of the Law of the Sea. However, it will be valuable to identify which potential impacts will be subject to assessment, taking every possible dimension into account. He added that the Group of 77 is open to exploring any list of activities that will prompt assessment. However, such a list must be flexible and regularly updated.
The representative of Algeria, speaking on behalf of the African Group, and associating himself with the Group of 77, said the new instrument could set up a global framework dealing with standards and minimum requirements for environmental impact assessments. That will ensure that assessments are consistent across regions, he said, suggesting that the new instrument adopts thresholds already established in the Antarctic Treaty.
The representative of Maldives, speaking on behalf of small island developing States, said assessments should be consistent with the Convention on the Law of the Sea and international customary law. Provisions should take into account all activities. An indicative and non-exhaustive list of activities requiring assessment could be developed at a later stage. On cumulative impacts, he said they must be considered through a process that considers the impact on both the immediate and adjacent areas.
The representative of Antigua and Barbuda, speaking on behalf of the Caribbean Community (CARICOM), said the new instrument must outline a transparent process for determining what activities will be subject to assessment. Reiterating the Group of 77’s position, she said existing instruments must not be undermined or duplicated. She added that a list of activities subject to assessment should be subject to change, particularly given the changing nature of technology.
Nauru’s delegate, speaking on behalf of Pacific small island States, underscored the responsibility of those States having jurisdiction over activities to be carried out on the high seas. She added that standards and frameworks, perhaps established by a working group, could be annexed to the instrument.
The representative of the European Union said that, for the bloc, articles 204, 205 and 206 of the Convention on the Law of the Sea contain the basis for developing the issue of environmental impact assessment in the proposed implementing agreement. That text should ensure formal cooperation with existing regional and sectoral organizations, based on their respective competencies. Environmental impact assessments should be required for all activities under the jurisdiction or control of States parties. She proposed putting into place a procedure to elaborate thresholds and criteria for assessment, in tandem with a process to regularly update them. She added that the bloc prefers not having a list of activities that will not be subject to assessment.
Mexico’s delegate, suggesting that the experience of existing instruments should be considered, said any activity that might harm the marine environment must be subject to environmental impact assessment. At present, there is no standard of minimum risk that will trigger an obligation to conduct an assessment. He said his country could be in favour of a list of activities subject to assessment, so long as it is subject to review and not exhaustive.
The representative of China said the new instrument should follow the letter of the Convention of the Law of the Sea and encourage States parties to adopt domestic legislation and policies for conducting assessments in marine areas beyond national jurisdiction. The instrument should respect the functions and role of existing texts, he said, adding that the rights and obligations of States should not be undermined. Citing article 206 of the Convention on the Law of the Sea, he said the threshold for assessment should be reasonable grounds for believing that a particular activity might cause pollution or harmfully change of the marine environment. He added that, if all parties believed that there must be a list, then that list should be open, indicative and non-binding.
The representative of the United States described the discussion as an exercise in fleshing out article 206 of the Convention on the Law of the Sea. Echoing his counterpart from China’s position, he identified funding of planned activities in marine areas beyond national jurisdiction as an example of an activity under State control. On the other hand, the activity of a vessel flying a particular State’s flag would not be an example. He added that his delegation could consider a list of activities that might require assessment.
Canada’s delegate suggested that the new treaty should include an obligation for States to conduct environmental impact assessments for high seas activities undertaken by their nationals or by vessels flying their flags. Like other delegations, Canada is inspired by article 206 of the Convention on the Law of the Sea, he said, emphasizing that setting out thresholds and criteria for assessment will allow more flexibility than a list approach.
Also speaking were the representatives of the Seychelles, Brazil, Philippines, Singapore, Republic of Korea, New Zealand, Japan, Colombia, Switzerland, Ecuador, Australia, Indonesia, Chile, Senegal and Norway.
An observer of the Holy See also spoke.
Also today, the conference wound up its discussion of measures such as area‑based management tools, including marine protected areas, to be included in the treaty, with delegates focusing on the process related to those tools. Several speakers spoke in favour of setting up a global decision-making conference of the States parties, while others made the case of a hybrid approach that draws on existing bodies.
Algeria’s representative, speaking on behalf of the African Group, and associating himself with the Group of 77, said the former favoured a global approach to area-based management tools, in particular with respect to decision‑making and institutional set‑up. Alternatives — such as a regional, sectoral and hybrid approach — might seem attractive, but as they rely on existing frameworks, they will have gaps and weaknesses. They will also represent a continuation of the status quo. He added that a global approach will require, at a minimum, a conference of the parties with decision-making, standard-setting and review functions; a secretariat; and a scientific committee that will make recommendations.
The representative of Nauru, speaking on behalf of the 12-nation group of Pacific small island States, and associating herself with the Group of 77 and the Alliance of Small Island States, said that, overall, her group wanted to see decisions taken at the global level to ensure that they are binding on all. She emphasized, however, the importance of regional considerations and for the special situation of small island developing States considered. She added that decisions and considerations should be based on best scientific information, including traditional knowledge.
The representative of the Bahamas, speaking on behalf of the 14-nation Caribbean Community, and associating herself with the Group of 77 and the Alliance of Small Island States, said the instrument should set out general provisions and criteria for the establishment of area-based management tools. She suggested that the conference explore whether existing bodies could be granted authority to evaluate proposals for area-based management tools. Consultation modalities will be required, but not elaborated, in the instrument, with the final designation of area-based management tools being taken by States. She added that the instrument should also require scientific follow-up and review.
The representative of the Russian Federation, rejecting the global approach, said decision-making should remain the prerogative of regional and sectoral organizations, emphasizing that decisions regarding area-based management tools should be taken by States that will be directly affected. A regional approach will include not only regional fisheries management organizations, but also regional marine conventions which often have a mandate to conserve and sustainably use marine biological diversity.
The United States’ delegate said his delegation favoured a hybrid approach, as a centralized global option risked creating overlapping mandates, among other issues. A hybrid process will include site selection in consultation with regional and sectorial bodies, with coordination among relevant stakeholders. Proposals for areas should include scientific justification. States should be encouraged to consider scientific work already undertaken in identifying potential marine protected areas. He added that the instrument should clearly identify who can make proposals for areas to be identified.
The representative of the Federated States of Micronesia emphasized the importance of traditional knowledge, which should complement the work of formal science.
South Africa’s representative said “the global approach is the way to go”, as the alternatives will mean the continuation of the status quo. The instrument must pave the way for Governments to meet longstanding commitments, including the protection of 10 per cent of the world’s oceans by 2020. It should also define a process to identify and manage marine protected areas, with a mechanism that will spot violations and cases of non-compliance. “We need a treaty with teeth that bite,” he added.
Also speaking in the morning on area-based management tools were representatives of Argentina, Republic of Korea, Mauritius, Brazil, China, Tonga, Japan, Colombia, New Zealand, Singapore, Canada, Costa Rica, Côte d’Ivoire, Chile, Iceland, Bahamas, Mexico, Norway, Thailand, Philippines, Australia, South Africa, Uruguay, Senegal and Kenya.
An observer of the Holy See also spoke.
Convened pursuant to General Assembly resolution 72/249, the session — continuing through 17 September — is seeking to elaborate the text of an international legally binding instrument under the 1982 United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction.
The session is the first in a series, with the second and third to take place in 2019 and the fourth and last session planned for the first half of 2020.
The conference will meet again on Tuesday, 11 September, to continue its work.