Facilitator Rene Lefeber, September 14th: Report on Environmental Impact Assessment Working Group

Met for one and a quarter days on Mon 10th and Tue 11th of September.

Discussions were structured around sections in the President’s aid: obligation to conduct EIAs, relationship to EIA processes under relevant bodies, activities for which EIA required, EIA process, content of EIA reports. Monitoring, reporting and review, SEAs, cross-cutting issues.

Will not be comprehensive summary - extensive and complex discussions - will give overview and general trends.

On obligations to conduct EIAs - convergence that art 204-206 of UNCLOS could form basis of this obligation in this ILBI. Reference was also made to general obligation to protect and preserve marine environment of 192 in UNCLOS, relevant case law and customary international law as existing sources of obligations.

Convergence on view that obligation related to planned activities under jurisdiction of states that may cause substantial pollutions/change/harm to marine environment.

Number of options presented to determine state jurisdiction or control. Relationship to EIA process in existing bodies - bearing in mind GA res 69/292 and 72/249 on need to ensure this process doesn’t undermine existing bodies, convergence on importance on avoiding duplication of existing obligations for EIAs. Need to establish process for cooperation with existing bodies general recognized.

Specific options to foster mutually supportive and coherent process in ABNJ identified during discussions eg EIA threshold would constitute the minimum standard, accompanied by a consultation mechanism with relevant frameworks to facilitate a harmonized approach. No EIA required for any activity appropriately done by existing bodies, irrespective of whether an EIA required under those rules/guidelines. The ILBI would require EIAs where relevant bodies with mandates for such assessment in ABNJ where they already exist. Functionally equivalent EIA under other bodies would meet requirements for ILBI. Threshold should not undermine existing EIA requirements with a lower threshold. Activities needing EIA - various proposals put forward on threshold. Some proposals called for adoption of threshold in art 206 of UNCLOS, others highlighted Madrid Protocol of Antarctic Treaty.

Some recognized the need for tiered threshold approach requiring comprehensive EIAs only for those meeting threshold in art 206 of UNCLOS. Convergence on benefit of developing guidance to operationalize need for EIA and its relevant thresholds, modalities identified during the discussion including criteria could be developed by scientific/technical body established under ILBI.

Guidance could be drawn from existing practices or based on best available scientific evidence. Number of examples for specific criteria referred to.

Some convergence on indicative non-exhaustive list needing EIA, providing its regularly updated, either as annex or guidance to be developed later. Was noted that impact of activity depends on scope and the area where undertaken, making such lists inadequate. Could be difficult to negotiate or to amend.  Convergence on view that cumulative impacts should be considered in EIAs - different options on how to implement this. Processes originating from land based activities - questions on whether to include.

EIA process - convergence on most of procedural steps to be included in EIA process, as listed in section 3 of Prepcom report. Alternative proposals made on inclusion of publication of decision making documents, and consultation, and monitoring and review.

Some additional steps proposed eg on compliance/enforcement. Difference proposals made on level of detail needed in ILBI re requirements for EIA process. Various proposals made on whether process should be internationalized - some said states responsible for entire proposal to promote efficiency and timeliness, others called for institutional arrangements at least for some part eg decision making, monitoring and review to ensure global coherence and standards of ILBI are met. Internationalization could help developing states esp SIDs.

Need to identify standard for approving EIAs raised. Some standards raised, we may need additional consideration on this. Content of EIA reports - convergence on most elements to be included, as in section 3 of prep com report. In addition, was proposed that reports should indicate sources of information in report, environmental record of proponent and environmental management plan. Further proposed that consistent with Art 205 of UNCLOS reports should be published and available to all states.

Growing convergence that ILBI should not have too much detail on content of EIA bodies - could be elaborated further or in annex. Proposals on ILBI addressing transboundary - area-based approach would only cover ABNJ activities while under impact-based approach all activities with impacts on ABMJ would be covered.

Monitoring - general recognition that general mechanism for monitoring and review could be set out, various proposals to set out obligations that all authorized activities are monitored managed and reviewed. Especially on whether to internationalize this step. Some called for decision making body, scientific body or compliance committee to oversee this to some extent. Others called for this to be controlled by states solely under whose control/jurisdiction it takes place.

Adjacent coastal states should be notified.

SEAs - inclusion of provisions in ILBI, different approaches put forward. Those who supported, suggested different proposals on scope, level at which SEAs undertaken and by whom. Reference made to possible models of SEAs and relevant guidance. Suggested that SEAs could be considered from of EIA to be conducted in early planning. Could inform development of ABMTs under ILBI.

Another proposed approach was to exclude SEAs due to cost, complexity, length of time. Unclear who could undertake these for ABNJ.

Cross cutting elements - use of terms: some convergence on need to include definition of some key terms, a number were raised. Would be dependent on content of ILBI and could be determined later, should be consistent with those in other instruments. Specific definition put forward for EIA, SEAs, environmental, cumulative effects.

Relationship to existing instruments: convergence on need to promote cooperation with other bodies, was suggested that ILBI provide for formal cooperation with existing frameworks relevant to ILBI. ILBI should ensure effective EIAs for all activities under ABNJ was suggested. Further consideration will need to be given to this section as work on ILBI progresses.

General principles and approaches - convergence on need to include guiding principle and approaches on EIAs, as well as for whole ILBI. number of approaches were proposed.

International cooperation - generally recognized that international cooperation essential to conduct of EIAs in ABNJ in accordance with cooperation in UNCLOS. Suggested that this could take into account special needs of developing countries, eg development of institutional capacity and TT, need for funding support. Special case of SIDs was suggested. Number of modalities for cooperation highlighted eg consultation of adjacent and other states, sharing of information with relevant bodies.

Institutional arrangements - recall proposals on internationalization of EIA process, those in favour put forward options - role for COP, scientific body. Proposals also for BBNJ fund and compliance body.

CLHM - convergence on need for CLHM to share information re EIAs, serving as repository for baseline data, information on planned activities, access to results of completed EIAs subject to confidentiality.

Such a mechanism as hub for regional or sub regional clearing houses. Other proposal for mechanism to include international body responsible for fairness and transparency, monitoring and review of methods. Attention drawn to existing instruments which could be taken into account for establishing CLHM.

UNTV link to Statement from Facilitator Rene Lefeber, September 14th