Slow progress towards a better regime for environmental impact assessments

Abstract

The purpose of the presentation is to give an overview of the status of environmental assessments in international law, and to review the progress of a global and a regional process in trying to improve the current regime.

The international regime for environmental impact assessments (EIA) in the Arctic Ocean is symptomatic for the situation in most regional seas. There is a predominance of requirements that are unspecific about the content and the process of the assessments. The Law of the Sea Convention does not even specify that its assessment obligation refer to EIA for projects, nor strategic environmental assessments (SEA) for policies, plans and programmes. The lack of a default and specific obligation to conduct EIA and SEA, leads to a patchwork of assessment obligations according to type of activity and area covered. The Convention on Biological Diversity contains the most specific obligations, transnational for the special purpose of assessing impacts on biodiversity. The Espoo Convention and its SEA Protocol are specific for transboundary procedures, but apply to few marine activities.

“EIAs” are included in the upcoming UN negotiations about a new legally binding instrument on biodiversity in areas beyond national jurisdiction (ABNJ). The recommendations from a Preparatory Committee indicate that a future instrument may clarify thresholds and criteria for undertaking EIA, the process, and the content of final reports. The institutional aspects including decision-making seem more unclear. The Committee has suggested that the assessment obligation should be limited to planned activities in ABNJ. That will exclude the obligations of states to assess the transboundary impacts on ABNJ caused by activities located in areas within national jurisdiction. Moreover, the recommendations are open as to whether the instrument should address SEA. That may be understandable since SEA, as opposed to EIA, has not attained the status of customary law, and is more open-ended as regards process and content. However, there is a strong need for strategic assessments in the Arctic Ocean and other seas as human activities expand. Attempts to link the procedural obligation of conducting an assessment closer to substantive regulations have been raised in the process, but is not reflected in the Committee’s recommendations.

An Arctic Council Task Force on increased marine cooperation did not recommend regional initiatives to address shortcomings in the regional assessment regime. However, the Arctic Council has initiated a project to compile and disseminate best practices.