EIA in the Antarctic Treaty System and London Protocol:

Lessons for EIA in ABNJ

Karen N. Scott, University of Canterbury, New Zealand

EIA is one of

5 topics to

be

addressed

by the BBNJ

Agreement.

Developing EIA under UNCLOSThe South China Sea Arbitration (Philippines v. China) (2016)

• The Tribunal cannot make a definitive finding that China has prepared an environmental impact assessment, but nor can it definitely find that it has failed to do so in light of the repeated assertions by Chinese officials and scientists that China has undertaken thorough studies. Such a finding, however, is not necessary in order to find a breach of Article 206. To fulfil the obligations of Article 206, a State must not only prepare an EIA but also must communicate it. The Tribunal directly asked China for a copy of any EIA it had prepared; China did not provide one. While acknowledging that China is not participating in the arbitration, China has nevertheless found occasions and means to communicate statements by its own officials, or by others writing in line with China’s interests. Therefore had it wished to draw attention to the existence and content of an EIA, the Tribunal has no doubt it could have done so. In any event, the obligation to communicate is, by the terms of Article 205, to “competent international organizations, which should make them available to all States.” Although China’s representatives have assured the States parties to the Convention that its “construction activities followed a high standard of environmental protection,” it has delivered no assessment in writing to that forum or any other international body as far as the Tribunal is aware. Accordingly, the Tribunal finds that China has not fulfilled its duties under Article 206 of the Convention (para. 991).

Learning Lessons

• 1991 Environmental Protocol to the 1959 Antarctic Treaty

• 1996 Protocol to the 1972 London (Dumping) Convention

EIA and the Antarctic Treaty System (ATS)

1959 Antarctic

Treaty

1991 Environmental

Protocol

1980 Convention on the

Conservation of Antarctic Marine Living Resources

1972 Convention on the

Conservation of Antarctic Seals

1988 Convention on the Regulation

of Antarctic Mineral

Resources

Measures, Resolutions,

Decisions

EIA and the Antarctic Treaty System (ATS)

• EIA has evolved… into the de facto gatekeeper for Antarctic activity, and (at its highest level) the most developed area of international scrutiny by states of other states’ activities there.

Alan D Hemmings and Lorne K Kriwoken, “High level Antarctic EIA under the Madrid Protocol: state practice and the effectiveness of the

Comprehensive Evaluation process” 10 (2010) Int Environ Agreements 187, 188

The 3 Levels of EIA under the EPPreliminary Stage

• Annex I, Art 1• Must consider the potential level of impact an

activity might have with reference to Article 8 of the Protocol.

• If an activity is determined as having less than a minor or transitory impact, the activity may proceed.

The 3 Levels of EIA under the EPInitial Environmental Evaluation (IEE)

• Annex I, Art 2• Unless an activity has been determined to have a less

than minor or transitory impact or unless a comprehensive environmental evaluation is being prepared an IEE must be prepared.

• IEE must include a description of the activity, purpose, location, duration and intensity, cumulative impacts and consideration of alternatives to the proposed activity.

• If the activity is likely to have no more than a minor or transitory impact it may go ahead provided that appropriate procedures, including monitoring are put in place.

The 3 Levels of EIA under the EPComprehensive Environmental Evaluation (CEE)

• Annex I, Art 3• If an IEE indicates or if it is otherwise determined that an

activity is likely to have more than a minor or transitory impact then a CEE will be prepared.

• Much more detail is provided in Annex I as to the factors to be considered including (but not limited to) likely effect on the conduct of research, gaps and uncertainties in knowledge, consideration of second order impacts of activity and of the option of not proceeding with activity.

• The CEE must be made publicly available and must be considered by the ATCM prior to any decision to proceed.

• A final CEE shall address comments received on draft CEE and final CEE shall be circulated at least 60 days before commencement of activity.

In addition to Art 8 EP, Annex I the

ATCM has adopted detailed EIA

guidelines (Resolution 1 (2016) as

well as guidance on following up

CEEs, in particular, whether

activities have been carried out in

accordance with the CEE

(Resolution 2 (1997)).

For specified activities, additional

EIA guidance has been adopted

(e.g. Environmental Guidelines for

operation of remotely piloted

aircraft systems in Antarctica

(Resolution 4 (2018)).

No IEEs have been

undertaken by

Austria, Belarus,

Bulgaria, Columbia,

Cuba, Denmark,

Estonia, Greece,

Guatemala Hungary,

Iceland, Kazakhstan,

Korea DPRK,

Malaysia, Monaco,

Mongolia, Pakistan,

PNG, Portugal.

1996 London Protocol 2013 Amendments to the Protocol

A Two Stage AssessmentStage 1: Does the activity constitute ocean fertilization for scientific research?

A Two Stage AssessmentStage 2: Assessment of the Potential Effects of the Activity

International Oversight under the LP

• The contracting party issues a permit provided the assessment has been satisfactorily completed, risk management and monitoring is appropriate and it is determined that ‘pollution of the marine environment from the proposed activity is, as far as practicable, prevented or reduced to a minimum, therefore not contrary to the aims of the Protocol.’ [26(7)].

• Permits must be regularly reviewed and the outcome of assessment and relevant documentation shall be reported to the Secretariat and shall be made publicly available.

• Issues of non-compliance can be referred to the non-compliance mechanism under Art 11 of the Protocol.

Lessons Learned?

1. Importance of defining thresholds and other criteria and facilitating consistent application of the criteria.

2. An ICG-type process for more significant activities, perhaps with advice provided by an independent expert scientific group in addition to consultation with affected states and relevant international organisations.

3. Should there be a mechanism to require states to comply with recommendations or to prevent an activity from going ahead altogether?

4. Considering cumulative impacts.

5. Facilitating public access to EIA documentation and decisions.

Thank you for your attention!

• In conclusion there are valuable lessons to be learned about the practice of EIA within the Antarctic Treaty System and under the London Protocol that can inform EIA as it develops within the BBNJ Agreement.