Duncan Currie 3 November 2008

1. Achieving Cross-sector Coordination and/or Initiating Area-Wide Environmental Impact AssessmentWorkshop on Governance of Marine Areas Beyond National Jurisdiction: Management Issues and Policy OptionsNovember 3-5, 2008, Singapore Duncan Currie 3 November 2008

2. Some legal context‘hard law’ CBD • Art 3: States have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction • Art 4(b): Scope: CBD applies in the case of processes and activities, regardless of where their effects occur, carried out under its jurisdiction or control, within the area of its national jurisdiction or beyond the limits of national jurisdiction. • Art 14(1) Parties are to: • introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity • Promote consultation on activities likely to significantly affect adversely on ABNJ, through bilateral/regional/multilateral agts UNCLOS • Art 206: When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall [publish reports or provide to competent int’l organizations]

3. Some legal context‘soft law’ Agenda 21Chapter 17.21 and .22 (b) preventive, precautionary and anticipatory approaches, ensure prior assessment of activities that may have significant adverse impacts upon the marine environment. JPOI (Plan of Implementation of the World Summit on Sustainable Development) para. 36(c) Improve the scientific understanding and assessment of marine and coastal ecosystems as a fundamental basis for sound decision-making through actions to….Build capacity in marine science, information and management, through, inter alia, promoting the use of environmental impact assessments and environmental evaluation and reporting techniques, for projects or activities that are potentially harmful to the coastal and marine environments and their living and non-living resources; UNGA Resolution 61/105 OP 83: Calls upon RFMO/As to assess on the basis of the best available scientific information, whether individual bottom fishing activities would have significant adverse impacts on vulnerable marine ecosystems, and to ensure that if it is assessed that these activities would have significant adverse impacts, they are managed to prevent such impacts, or not authorized to proceed. IUCN (Oct 2008) Motion 43: States to (a) Develop assessment processes, including the assessment of cumulative impacts, of human activities with a potential for significant adverse impacts on the marine environment, living marine resources and biodiversity in areas beyond national jurisdiction; and b) Ensure that assessed activities with the potential for such significant adverse impacts are subject to prior authorization by States responsible for nationals and vessels engaged in those activities, consistent with international law, and that such activities are managed to prevent such impacts, or not authorized to proceed.

4. Some legal contextImplementation Madrid ProtocolProtocol on Environmental Protection to the Antarctic Treaty, 4 October 1991 Art 3: Environmental principles: activities in the Antarctic Treaty area shall be planned and conducted on the basis of information sufficient to allow prior assessments of, and informed judgments about, their possible impacts on the Antarctic environment and dependent and associated ecosystems and on the value of Antarctica for the conduct of scientific research; Such judgments shall take account of: the scope of the activity, (including its area, duration and intensity), cumulative impacts of the activity, capacity to monitor key environmental parameters and ecosystem components; capacity to respond promptly and effectively to accidents, (regular and effective monitoring shall take place to all assessment of the impacts of ongoing activities, including the verification of predicted impacts. Article 8:Environmental Impact and Assessment Apply to any activities undertaken in the Antarctic Treaty area pursuant to scientific research programs, tourism and all other governmental and non-governmental activities in the Antarctic Treaty area for which advance notice is required under Article VII (5) of the Antarctic Treaty, including associated logistic support activities. Procedures in Annex I Either less than minor or transitory impact, or prepare Initial Environmental Evaluation, or Comprehensive Environmental Evaluation. (Art 8.1)

5. Recent Developments • CBD COP9 • FAO Draft International Guidelines for the Management of Deep-Sea Fisheries in the High Seas • RFMO (non) implementation of GA Res. 61/105. • London Convention on ocean fertilisation

6. CBD COP9 COP 9 Decision IX/20 on Marine and coastal biodiversity • . • OP 8: Invited cooperation in further developing scientific and technical guidance for the implementation of environmental impact assessments and strategic environmental assessments for activities and processes under their jurisdiction and control which may have significant adverse impacts on marine biodiversity beyond national jurisdiction with a view to ensuring such activities are regulated in such a way that they do not compromise ecosystem integrity, and to report to the Conference of the Parties at its tenth meeting on progress made in that regard; • OP 9 Noted the need for capacity-building for developing countries, in order to fully implement existing provisions of environmental impact assessment, as well as the challenges and difficulties in carrying out environmental impact assessment in areas beyond national jurisdiction; • OP 10: Decided to convene an expert workshop, to discuss scientific and technical aspects relevant to environmental impact assessment in areas beyond national jurisdiction with a view to contributing to the development of such scientific and technical guidance, building on ongoing relevant sectoral, regional and national environmental impact assessment efforts;

7. CBD COP9 • COP 9 Decision IX/16 on Biodiversity and climate change • OP4: requested Parties and urged other Governments, in accordance with the precautionary approach, to ensure that ocean fertilization activities do not take place until there is an adequate scientific basis on which to justify such activities, including assessing associated risks, and a global, transparent and effective control and regulatory mechanism is in place for these activities; with the exception of small scale scientific research studies within coastal waters. Such studies should only be authorized if justified by the need to gather specific scientific data, and should also be subject to a thorough prior assessment of the potential impacts of the research studies on the marine environment, and be strictly controlled, and not be used for generating and selling carbon offsets or any other commercial purposes;

8. Ocean Fertilisation: London ConventionLCP30 LP3 30th Meeting of the Parties to LC and 3rd meeting of Parties to the LP (LCP 30 LP3) last week agreed that: , “legitimate scientific research should be defined as those proposals that have been assessed and found acceptable under the assessment framework” • the scope of the London Protocol and Convention include ocean fertilization activities; • provision should be made for legitimate scientific research; • scientific research proposals should be assessed on a case-by-case basis using an using an assessment framework to be developed under the LC and LP by the Scientific Groups. • the assessment framework should include tools for determining whether the proposed activity is contrary to the aims of the Protocol and Convention • until specific guidance is available, Contracting Parties should be urged to use utmost caution and the best available guidance to evaluate the scientific research proposals to ensure protection of the marine environment consistent with the Protocol and Convention. • such guidance includes previous agreements of the Governing Bodies, Annex III to the Convention and Annex 2 to the Protocol, the considerations for evaluating ocean fertilization proposals developed by the Scientific Groups at SG31 and the Generic Waste Assessment Guidance and whether the proposed activity is contrary to the aims of the Protocol and Convention • given the current state of knowledge, other ocean fertilization activities should not be allowed;

9. FAO GuidelinesThe International Guidelines for the Management of Deep Sea Fisheries in the High Seas 41. States and RFMO/As should, as appropriate, collaborate in assessing deep-sea stocks throughout their range of distribution. 47. Flag States and RFMO/As should conduct assessments to establish if deep-sea fishing activities are likely to produce significant adverse impacts in a given area. Such an impact assessment should address, inter alia: (type(s) of fishing conducted or contemplated, scientific and technical information and baselines, identification etc of VMEs, data and methods used, likely impacts, risk assessment of those impacts, to determine significant adverse impacts, and proposed measures. 49. In conducting impact assessments, States and RFMO/As should consider, as appropriate, the information referred to in these Guidelines, as well as relevant information from similar or related fisheries, species and ecosystems. 50. RFMO/As should develop an appropriate mechanism for reviewing assessments, determinations and management measures, 74. If after assessing all available scientific and technical information, the presence of VMEs or the likelihood that individual DSFs activities would cause significant adverse impacts on VMEs can not be adequately determined, States should only authorize individual DSFs activities to proceed in accordance with: i. precautionary conservation and management measures to prevent significant adverse impacts as described in paragraph 65;. iia protocol for encounters with VMEs consistent with paragraphs 67-69; and iii measures, including ongoing scientific research, monitoring and data collection, to reduce the uncertainty. Draft International Guidelines for the Management of Deep-Sea Fisheries in the High Seas (including amendments) from the first session of the Technical Consultation), (September 2008) at ftp://ftp.fao.org/FI/DOCUMENT/tc-dsf/2008_2nd/2_1e.pdf.

10. RFMO South Pacific RFMO Negotiations Interim Measures Reñaca, Chile May 2007 6. In respect of areas where vulnerable marine ecosystems are known to occur or are likely to occur based on the best available scientific information, close such areas to bottom fishing unless, based on an assessment undertaken in accordance with paragraphs 11 and 12 below, conservation and management measures have been established to prevent significant adverse impacts on vulnerable marine ecosystems and the long-term sustainability of deep sea fish stocks or it has been determined that such bottom fishing will not have significant adverse impacts on vulnerable marine ecosystems or the long term sustainability of deep sea fish stocks.

11. RFMO South Pacific RFMO Negotiations Assessment of bottom fishing Participants resolve to: 11. Assess, on the basis of the best available scientific information, whether individual bottom fishing activities would have significant adverse impacts on vulnerable marine ecosystems, and to ensure that if it is assessed that these activities would have significant adverse impacts, they are managed to prevent such impacts, or not authorized to proceed. 12. Apply the following procedures regarding the assessment described in paragraph 11 above: (a) Participants are to submit to the interim Science Working Group their assessments of whether individual bottom fishing activities would have significant adverse impacts on vulnerable marine ecosystems, including the proposed management measures to prevent such impacts, and make these assessments publicly available. (b) The interim Scientific Working Group will review the assessments and proposed management measures and provide comments to the submitting Participant. For the purposes of carrying out such reviews, the interim Scientific Working Group will design a preliminary interim standard for reviewing the assessments and develop a process to ensure comments are provided to the submitting Participant and all other Participants within two months. In the meantime, the submitting Participant may provisionally apply their proposed management measures. (c) Participants may, on the basis of the assessments submitted under sub-paragraph (a) above and the comments provided under sub-paragraph (b) above, authorize vessels flying their flag to undertake bottom fishing activities in the region of the Area for which the assessment was conducted and require such vessels to implement conservation and management measures to prevent significant adverse impacts. (d) Participants are to notify the interim Secretariat of the measures required under sub-paragraph (c) above and a list of the vessels to which the measures relate, and to make that information publicly available. 13. In undertaking the assessments as described in paragraphs 11 and 12 above, take into account any international technical guidelines regarding standards, criteria or specifications for identifying vulnerable marine ecosystems and the impacts of fishing activities on such ecosystems that may have been developed.

12. RFMO South Pacific RFMO Negotiations But: Slow implementation. Bottom Fishery Impact Assessment Standard under development, being revised to implement FAO Guidelines Don’t forget stock assessment: para 6: ‘significant adverse impacts on vulnerable marine ecosystems and the long-term sustainability of deep sea fish stocks’; para 41 FAO Guidelines.

13. NAFO • May 2008 adopted measures to implement 61/105 • Article 4 requires assessment of bottom fishing for 2009 to determine if will have would have significant adverse impacts on vulnerable marine ecosystems. • Then: each CP proposing to botttom fish submits Each Contracting Party proposing to participate in bottom fishing shall submit to the Executive Secretary information and an initial assessment, ‘where possible,’ of the known and anticipated impacts of its bottom fishing activities on vulnerable marine ecosystems, in advance of the next meeting of the Scientific Council • The Scientific Council shall undertake an assessment, according to procedures and standards it develops, and provide advice to the Fisheries Commission as to whether the proposed bottom fishing activity would have significant adverse impacts on vulnerable marine ecosystems and, if so, whether mitigation measures would prevent such impacts. • The Fisheries Commission then adopt conservation and management measures to prevent significant adverse impacts on vulnerable marine ecosystems. • In June 2008, Scientific Council was neither able to make a detailed analysis nor conduct impact assessments of bottom fishing activities. • Ad hoc Working Group of Fishery Managers and Scientists on VMEs said ‘appears to be little interaction between species of corals and fishing activity in the Regulatory Area.’ • NAFO's will take no action with respect to areas likely to contain corals until they have further studied these areas, including at-sea surveys, to determine whether in fact the areas identified as likely to contain corals in reality do contain corals

14. CCAMLR • Article XV of the Treaty requires the Scientific Committee to conduct regular assessments and trends of the populations of marine living resources and to assess the effects of proposed changes in the methods or levels of harvesting and proposed conservation measures; • Members are to take opportunities to collect data during harvesting to assess impacts of harvesting (Article XX) • Measure 22-06 (2007) requires assessment of bottom fishing from 1 December 2008 to determine SAI on VMEs and it is determined that these activities would make such contributions, that they are managed to prevent such impacts or are not authorised to proceed • Parties are to submit preliminary assessments and proposed measures. The Scientific Committee then adopts measurs.

15. CCAMLR Assessments • CCAMLR is meeting and preliminary assessments have been submitted by Australia, New Zealand, Japan, the UK and Spain., for longlines. • For Australia, some damage to VMS is envisaged and a move-on rule is implemented. Observer and video coverage is promised. • For Japan, little adverse impacts on VMEs is envisaged • New Zealand took the approach that only a small percentage of the seafloor is being impacted and therefore the impacts are negligible. Further work was suggested. • Spain reported between 6 and 13 specimens per 1000 hooks, and said that no areas being fished were found to contain VMEs. Also some technical improvements were suggested, increasing the distance from hooks to benthos and setting the mainline without hooks. • The UK reported that sponges, gorgonians and hydroids may be commonly impacted and regeneration rates could be low, with 10-35 organisms per 1000 hooks. 20 per 1000 was suggested as a notification threshold, and cameras suggested. • CCAMLR-XXVII/26; Preliminary assessments of known and anticipated impacts of proposed bottom fishing activities on vulnerable marine ecosystems

16. Unassessed, Unregulated Fishing • IPOA-IUU para 3: Unregulated fishing refers to fishing activities: 3.3.1 in the area of application of a relevant regional fisheries management organization that are conducted by vessels without nationality, or by those flying the flag of a State not party to that organization, or by a fishing entity, in a manner that is not consistent with or contravenes the conservation and management measures of that organization; or 3.3.2 in areas or for fish stocks in relation to which there are no applicable conservation or management measures and where such fishing activities are conducted in a manner inconsistent with State responsibilities for the conservation of living marine resources under international law. 3.4 Notwithstanding paragraph 3.3, certain unregulated fishing may take place in a manner which is not in violation of applicable international law, and may not require the application of measures envisaged under the International Plan of Action (IPOA). • Clear that where there is no RFMO, or no applicable measures, that the scope for unregulated fishing under 3.4 is increasingly limited. Time for international community to make it clear that prior assessment and regulation under conservation and management measures is a sine qua non for fishing on the high seas.

17. Burden of proof • Of 10 Principles for High Seas Governance launched in Barcelona, Principle 5 includes placing the burden of proof on those who argue that an activity will not cause significant harm to show that this is so, and make the responsible parties liable for environmental harm. • Increasingly clear that unregulated fishing on the high seas must end. Prior impact assessment, and implementation of those assessments in measures, is essential.

18. Conclusion • Back to IUCN Motion 43: States should (a) Develop assessment processes, and b) Ensure that assessed activities with the potential for such significant adverse impacts are subject to prior authorization by States responsible for nationals and vessels engaged in those activities, consistent with international law, and that such activities are managed to prevent such impacts, or not authorized to proceed. • Ocean fertilisation: moving in that direction. • Fishing: Policy moving in that direction; implementation slow to non-existent.