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International Union for Conservation of Nature

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

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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

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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.

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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.

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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.

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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

• r associated with or dependent upon the

target stocks”.

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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

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FAO Guidelines: Significant Adverse Impacts

• Significant adverse impacts are those that

compromise ecosystem integrity (ecosystem structure or function) such that: (i) impairs ability

• f 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.

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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

• f recovery;

– v. extent to which ecosystem functions may be altered by impact; – vi. timing and duration of the impact

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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

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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;...

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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

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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

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Espoo Convention

• Parties to prepare and share

environmental impact assessments for certain proposed activities likely to cause a significant adverse trans boundary impact

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CBD

• At 8th COP, Parties endorsed voluntary guidelines
• n 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

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CBD, Cont.

• Manila Workshop inter alia concluded existing

Guidelines may need to be modified, though not always in large ways

• At 10th 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

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UNEP Goals and Principles

• n 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

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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

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Monitoring and Compliance

• Focus of presentation is on assessment
• Monitoring of effects of activity also

important to know the outcome, to adjust activity as necessary, to ensure compliance with planned activity

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Assessments: Capacity Building

• Need to build capacity
• Many countries now have experience with

the conduct of environmental impact assessments within their jurisdiction

• UNEP Goals and Principles from 1991
• Antarctic Example
• London Convention/London Protocol

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Capacity Building: Antarctic Assessments

• Experience for areas beyond national

jurisdiction can be found in Antarctica

• Antarctic Treaty Secretariat maintains a

database that lists 814 assessments from as far back as 1988

• Many listed assessments include links to

actual assessment documents

• http://www.ats.aq/devAS/ep_eia_list.aspx?lang=e

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Antarctic Assessments: Countries included in Database

• Argentina, Australia, Belgium, Brazil,

Canada, Chile, China, Czech Republic, Ecuador, Finland, France, Germany, India, Italy, Japan, Republic of Korea, Netherlands, New Zealand, Norway, Peru, Romania, Russian Federation, South Africa, Spain, Sweden, Ukraine, United Kingdom, United States, Uruguay, Venezuela

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Antarctic Example

• Assessment documents available in

English, French, Spanish, Russian

• Can be used as examples or serve as

templates of how to do assessments in areas beyond national jurisdiction

• Opportunities for South-South, South-

North, North-South and North-North capacity building

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London Convention/Protocol Example

• LC/LP addresses capacity building
• Annually at governing body meetings
• Technical Co-operation and Assistance

Programme

• LC/LP website lists 18 Workshop Reports
• http://www.imo.org/OurWork/Environment/SpecialProgrammesAndInitia

tives/Pages/London-Convention-and-Protocol.aspx

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UNEP Example

• UNEP 2004 report “Environmental Impact

Assessment and Strategic Environmental Assessment: Towards an Integrated Approach”

• http://www.unep.ch/etb/publications/EnvImpAss/textONU

Br.pdf

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Area Management

• UNCLOS Articles 194 and 240 refer to need to avoid

unjustifiable interference with other legitimate activities

• Need to address growing and conflicting uses and activities
• Need for ecosystem-based management across sectoral lines
• Marine spatial planning within national jurisdiction; also for

beyond

• IOC web site “a public process of analyzing and allocating the

spatial and temporal distribution of human activities in marine areas to achieve ecological, economic and social objectives that have been specified through a political process.”

• Marine spatial planning supportive of three pillars of

sustainable development

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Area Management, Cont.

• Area-based management tools already exist

in areas beyond national jurisdiction, established through RFMOs and through IMO

• At International Seabed Authority

consideration of establishment of network of “Areas of Particular Environmental Interest” to assist Authority with work to implement Articles 145, 162, 165 and 192 of UNCLOS

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Marine Protected Areas

• At WSSD call for use of diverse approaches and

tools, including the establishment of representative networks of marine protected areas by 2012. General Assembly subsequently endorsed the Plan of Action.

• CBD Parties set a target of protecting 10% of the
• cean within marine protected areas by 2012,

extended now to 2020

• CBD adopted criteria for identifying Ecologically

and Biologically Sensitive Areas (EBSAs)

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CBD EBSA Criteria

• Uniqueness or rarity
• Special importance for life history of species
• Importance for threatened, endangered or

declining species and/or habitats

• Vulnerability, fragility, sensitivity, slow recovery
• Biological productivity
• Biological diversity
• Naturalness

http://www.cbd.int/doc/decisions/cop-09/cop-09-dec-20-en.pdf

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Regional Examples

• Southern Ocean: South Orkneys Marine Protected

Area (94,000 km2). CCAMLR working on other areas, including Ross Sea

• Mediterranean: Pelagos Sanctuary (87,000 km2) to

protect cetaceans

• North Atlantic: Six marine protected areas (285 000

km2)

• Sargasso Sea: Govt of Bermuda initiative
• Arctic: IUCN and NRDC workshop to identify

EBSAs, some beyond national jurisdiction; report

• nline
• Southern Indian Ocean: Fishers established 11

benthic protected areas

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Spatial Planning: Capacity Building

• Need to build capacity
• CBD Sect convening EBSA workshops

regionally

• GOBI focus on helping countries and
• rganizations to develop and use data, tools,

methodologies to identify ecologically significant areas, initial focus on beyond national jurisdiction

• Regional Seas Programmes

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Spatial Planning: Capacity Building 2

• Regular Process of Global Assessment of the

Marine Environment also to work through regional workshops

• IOC work on marine spatial planning
• GEF Seamounts project on seamounts in the

South Indian Ocean an example

• CCAMLR work in Southern Ocean provides

venue for collaboration of experts from North and South

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Marine Protected Areas

• A start already
• It can be done, there are examples
• Important for conservation and sustainable use
• f marine biological diversity beyond areas of

national jurisdiction

• Need to protect ecosystems in order to

understand and learn from them

• Important for life on Earth, for all three pillars of

sustainable development

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Thank you

Harlan Cohen, Ph.D. Advisor, Ocean Governance and International Institutions IUCN International Union for Conservation of Nature harlan.cohen@iucn.org