Experts drafting a new global instrument on biodiversity in ocean areas beyond national jurisdiction today deliberated which stakeholders — ranging from adjacent coastal States to indigenous peoples to the general public — should be consulted about planned activities under the treaty, as well as their potential role in environmental impact assessments.
Delegates outlined a range of views on those matters as they scrutinized articles 34, 35, 36 and 37 of the draft treaty (document A/CONF.232/2019/6), which also focus on the preparation, content and publication of environmental impact assessment reports. In an afternoon session, they continued their ongoing consideration of cross-cutting issues relevant throughout the new instrument, including the possible establishment and proposed functions of a clearing house mechanism and a dedicated scientific and technical body.
Discussions on these and other topics are taking place at Headquarters during the third session of the International Conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction. The session runs through 30 August.
Participants broadly favoured the spirit of article 34 on public notification and consultations to be carried out prior to activities subject to environmental impact assessments under the new treaty. However, they expressed different views on the particular wording of its paragraphs. The representative of Trinidad and Tobago, on behalf of the Caribbean Community (CARICOM), agreed with other speakers that provisions for public notification and consultations are critical and said they should be inclusive, transparent and carried out “in a timely manner”. In addition, he called for the addition of a reference to small island developing States, a proposal echoed by the representative of Australia.
The observer for the State of Palestine — speaking on behalf of the “Group of 77” developing countries and China and echoed by the representatives of Philippines, Seychelles, Indonesia and Singapore — called for specific references to “adjacent coastal States” throughout the article and advocated for early notification to be required. The representative of the Solomon Islands, on behalf of the Pacific small island developing States, emphasized that consultations must include small island developing States when they are adjacent to the impact assessment area.
The representative of the European Union delegation voiced support for the section as a whole and stressed that public notifications and consultations should be as open and transparent as possible. However, the bloc is not in favour of too much detail in article 34 and considers that references to “all relevant stakeholders” could suffice, instead of listing various individual entities. Proposing that the Conference of the Parties to the Convention on Biological Diversity could put forward recommendations on the conduct of the environmental impact assessment process, she said the Union submitted an additional article, 34 bis, to that effect. She went on to outline her delegation’s preferred language for the article’s other paragraphs.
Striking a similar tone, Norway’s representative agreed with the proposal to include a reference to “all relevant stakeholders”, noting that the aim of the notification and consultation process should be to cast as wide a net as possible to gather the information necessary to make informed decisions.
The representative of the United States advocated for an “effective, timebound opportunity” for stakeholders to comment during the scoping and drafting stages of planned activities, as well as the development of a written document for public release. Agreeing with other speakers that the language “all relevant stakeholders” should be used instead of including a detailed list, she nevertheless said her delegation does not support an obligation for States to identify and notify all stakeholders, as that process would constitute an undue burden. In that context, she suggested changing the title of the article from its current formulation — “Public notification and consultation” — to “Public notification and opportunity for comment”. The representative of the High Seas Alliance supported that proposal.
China’s representative, meanwhile, pointed out that not all activities should be subject to the notification and consultation provision — only those that meet the environmental impact assessment threshold and standards. Stressing that those assessments should be led and decided upon by States, he emphasized that other stakeholders “do not have the right to make decisions”.
Turning to article 35 on the preparation and contents of environmental impact assessment reports, delegates generally agreed on the need to list the mandatory elements to be included in those reports. They weighed various proposed paragraphs, which, if included, would require environmental impact assessment reports to provide descriptions of the planned activity in question; results of scoping exercises; the marine environments likely to be affected; reasonable alternatives to the planned activity; an environmental management plan; “worst case scenarios”; and the environmental records of the activities’ proponent. Speakers outlined their views on which of these elements, or others, should be required.
India’s representative, noting that his delegation is generally pleased with article 35 and its level of detail, advocated for the adoption for all of its subparagraphs as is. However, he is willing to consider minor amendments proposed by other delegations.
As to paragraph 36 on the publication of environmental impact assessment reports, the representative of the European Union delegation advocated for a dedicated disagreement registry but expressed willingness to consider using a clearing house mechanism for that purpose. He also noted that the bloc does not support paragraph 37 on the consideration and review of environmental impact assessment reports — as it is unclear who would be responsible for such processes — and called for its deletion. That proposal was echoed by the representatives of the Russian Federation and Norway.
In the afternoon, delegations discussed Article 48 on “Conference of Parties” and its paragraphs 1 to 3, with speakers including the United States, the observer for the State of Palestine, and New Zealand, among others, expressing support for paragraphs 1 and 2. The representative of the European Union delegation said it is important to avoid the situation where the Conference of the Parties spends too much time discussing rules of procedure. The representative of Colombia proposed adding “every year” to paragraph 2 to ensure establishing some regularity to the meeting. The representative of New Zealand proposed a new Article on transparency supported by several delegations including Norway, Australia, Canada, the Pacific small island developing States and the European Union.
The Russian Federation said that after the first meeting of the Conference of the Parties, the body can then decide when and if a next meeting shall be held. The Russian Federation did not support the establishment of a broad and costly institutional structure within this agreement. Several delegations proposed the deletion of paragraph 3, which reads: “The Conference of the Parties shall agree upon and adopt rules of procedure for itself and for any subsidiary body that it may establish.” However, Japan expressed support to retaining paragraph 3, adding that the rules of procedure are an important element of a Conference of Parties.
On paragraphs 4 and 5, the observer for the State of Palestine proposed some language amendments and requested clarity on some terms. The representative of the European Union referred to the written proposals his delegation submitted. In relation to paragraph 5, he said it is helpful to have an expressed provision indicating a proper time frame for the first review of the Conference of the Parties. On a more general note on the proposal on transparency, the representative of Jamaica, on behalf of CARICOM, said that there is merit in including transparency in the instrument, adding that it could be included in Article 5 as a principle.
The representative of the United States emphasized that all decisions of the Conference of the Parties must be made by consensus. He also proposed the deletion of references to coherence and harmonization in paragraph 4. Nauru’s delegate, on behalf of Pacific small island developing States and in regard to the decision-making processes, expressed support to working towards consensus, in the same vein expressing concern that a single delegation could possibly block consensus. She also said that the Conference of the Parties must be able to establish subsidiary bodies as it deems necessary. The representative of the Republic of Korea said his delegation believes that the detailed functions of any subsidiary bodies should be decided by the Conference of the Parties at a later time. Australia’s delegate said he was not completely clear that subparagraph C is necessary being that the promotion of cooperation and collaboration is mentioned in other areas of the provision.
Japan’s delegate, on subparagraph C, said it reads more like an objective of the implementing agreement itself rather than the function of the Conference, adding “we cannot support this paragraph”. Regarding paragraph 5, he said the new implementing agreement will include language on the Conference of the Parties convening to review meetings when it is necessary and for that reason paragraph 5 may not be necessary. The representative of Turkey expressed support to subparagraph D, emphasizing the importance of establishing subsidiary bodies as deemed necessary for the implementation of this agreement.
With regard to Article 49 titled “Scientific and Technical [Body] [Network]”, the representative of Jamaica, on behalf of CARICOM, expressed support for the establishment of a scientific and technical body. There should be some room for the body to provide the best possible science even if it were not specifically called to do so by the Conference of the Parties. She also added that not all the elements that are mentioned in the Article are necessary and welcomed merging some of the subparagraphs. Nauru’s delegate suggested amending the title to add the word “technological” to “Scientific and Technical [Body] [Network]” to better represent its functions.
Colombia’s representative, on behalf of Like-Minded Latin American States, suggested the deletion of “network” from the title. The terms of reference for the modalities of the bodies should be adopted by the Conference of the Parties, she added. This body would serve as an advisory body rather than a decision-making one. The Russian Federation proposed deletion of Article 49 altogether, adding that the creation of this body would be unnecessarily political and bureaucratic. Cuba’s delegate expressed support for it, adding that there are many bodies and institutions around the world that are carrying out research. Those institutions can serve as a model as to how this scientific and technical body functions.
The representative of the United States, also expressing support for the establishment of a scientific body, said that it is important that State parties and States entitled to become parties are able to participate in it. The representative of Senegal expressed strong support to the establishment of a scientific body rather than network. She proposed ensuring that the body can work in a proactive way and can be contacted on major issues. China’s delegate emphasized the need to clarify that, when and if established, the scientific and technical body would serve in a subsidiary role to the Conference of the Parties. The representative of Ecuador, while expressing support to its establishment, said that since neither the composition nor the size of the body has been designed, it is premature to have a rigid perspective of its functions.
Turning to Article 50 titled “Secretariat”, the observer for the State of Palestine, on behalf of the Group of 77, proposed some language amendments. The representative of the European Union delegation expressed support for having a Secretariat, emphasizing the need to gain a better understanding of the key functions of the Agreement and “what the Secretariat will look like in terms of size, substance and budget”.
Also speaking today were the representatives of Algeria (on behalf of the African Group), Uruguay (on behalf of a Group of Like-Minded Latin American States), Switzerland, Sri Lanka and Thailand.
The representatives of the International Cable Protection Committee, High Seas Alliance, International Union for Conservation of Nature, Food and Agriculture Organization of the United Nations (FAO), Council for Environmental Law, United Nations Environment Programme (UNEP) and the World Wide Fund for Nature, also participated.