Environmental Impact Assessments and the Treaty on Biodiversity Beyond National Jurisdiction

By Iosif Sorokin

An Environmental Impact Assessment (EIA) is a procedure for evaluating the likely impact of a proposed activity on the environment. EIAs typically require a detailed analysis of the environmental impact of a proposed action, careful consideration of alternatives to the proposed action, and discussion of measures which could mitigate potential environmental harms. This is facilitated by gathering input from scientists, policymakers, and civil society to help identify activities that may cause harm to the environment. Public participation is also usually a crucial part of EIAs, including the opportunity for members of the public to comment on a proposed action and receive responses to their questions, and ultimately to review the final record reporting the results of the EIA. The overall objective of an EIA is to ensure that environmental considerations are explicitly addressed and incorporated into the decision making process prior to undertaking an action that may significantly affect the environment.

 

EIAs in International Law

EIAs have become tremendously important tools for environmental management across the globe. More than one hundred nations have domestic statutes that require consideration and assessment of the environmental impacts of domestic development activities to some degree. International treaties, customs, and decisions by international courts also require EIAs for activities that may cause environmental impacts across borders. The most definitive statement of this obligation came in the decision of the International Court of Justice (ICJ) in the Pulp Mills Case (Argentina v. Uruguay) where the court confirmed that “it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource.”

However, the international law is unsettled as to whether a similar requirement under customary international law exists to perform an EIA for proposed activities in areas beyond national jurisdiction, such as the high seas. Article 206 of the Law of the Sea Convention (LOSC) states that it is a requirement under the Convention that nations assess the potential effects of activities under their jurisdiction or control—including areas beyond national jurisdiction but subject to their control—that may cause “significant and harmful changes to the marine environment.” The Article states a fair amount of leeway in determining the significance of the harm (there must be “reasonable grounds” for believing that a project may harm the environment) and the degree to which they are required to respond (as far as practicable). The requirement to perform an EIA in Article 206 of the LOSC is binding for all 167 states that have joined the treaty. However, some nations have not yet ratified the treaty, including the United States. Article 206 may only apply to all nations if it is an accurate statement of customary international law, which many provisions of the LOSC are understood to be.

 

The Biodiversity Beyond National Jurisdiction Treaty Negotiations

Although still at the negotiation phase, the anticipated treaty on Biodiversity Beyond National Jurisdiction (BBNJ) would, if completed, have major implications for the requirement to perform EIAs in areas beyond national jurisdiction. The primary goal of the negotiations relating to EIAs is to operationalize the obligation in Article 206 of the LOSC. Included in this goal is the development of a global default framework to cover emerging activities in areas beyond national jurisdiction, including marine tourism, floating installations, and seismic testing. This global framework would also include thresholds for new activities that would require an EIA. Another significant objective being negotiated is how to address the cumulative impact of human activities in EIAs. This includes a discussion of the need for cross-sectoral assessments of conflicting activities such as fishing, seabed mining, and the laying of submarine cables.

Arguably the most groundbreaking aim being considered in BBNJ negotiations is how to give content to the obligation to perform an EIA for activities in areas beyond national jurisdiction. This would include guidelines for how to conduct an EIA and standards against which the outcome of the EIA and the final decision to authorize an activity would be tested. Many prior agreements, including the LOSC, include the obligation to perform EIAs for activities in areas beyond national jurisdiction, but none spell out the content of this obligation or give details for how to conduct satisfactory EIAs. Giving content to the EIA obligation through the BBNJ treaty would be a significant achievement that would accomplish much more than merely recognizing the obligation as a part of international law.

The development of a binding BBNJ agreement is a lengthy process, as negotiations have been ongoing since 2004. It is unclear what a final agreement will look like. In 2015, the United Nations General Assembly (UNGA) passed resolution 69/292 calling for the development of a legally binding UNCLOS implementing agreement on the conservation and sustainable use of BBNJ. To help prepare the draft text of that agreement and make recommendations to the UNGA on the substantive issues covered by the agreement, the UNGA established a Preparatory Committee for the development of a BBNJ agreement.

The Preparatory Committee is expected to report back to the UNGA by the end of 2017. However, it is uncertain when an actual agreement would be concluded because there may still be substantive disagreement even at the time of the deadline, which would necessitate additional debate within the UNGA. Also unclear is how long it would take to implement the agreement if and when it is reached, as well as whether all countries would sign onto the agreement. Thus, in the meantime, it may be more practical to rely on other means besides an overarching international agreement to compel nations to perform EIAs for activities in areas beyond national jurisdiction.

The UN Sustainable Development Goals and Metropolitan-Level Collaboration

UN Sustainable Development Goals: SDG 11 Should Emphasize Metropolitan-Level Collaboration to Achieve Its Objectives

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By: Madeleine Wykstra

SDG 11 may foster a valuable opportunity through metropolitan collaboration and regulation at the subnational level to combat climate change, while avoiding political obstacles and bureaucracy at the national levels of government.

It’s Urban October, according to the United Nations Human Settlements Programme (UN–Habitat). The campaign is one of many promoted by various UN branches to encourage sustainable urban development and address uniquely urban challenges. Such emphasis on the role of the city in sustainable development is rightly placed. The new UN Sustainable Development Goals (SDGs), adopted at last month’s summit, recognize this important relationship between cities and sustainable development in its eleventh goal (SDG 11): to “[m]ake cities inclusive, safe, resilient and sustainable.”

The SDGs establish a new set of global objectives for member states over the next fifteen years. They succeed the organization’s eight Millennium Development Goals (MDGs), which launched in 2000 and aimed at combatting various dimensions of poverty. Salient criticisms of the MDGs were their “tensions with international human rights legal standards,” a lack of emphasis on regional and local level participation and difficulty in measuring their ultimate role in mitigating poverty—all of which remain ongoing debates, for another time.

The new SDGs, seventeen in all, are set to be achieved by the year 2030. Some goals are reinvigorated versions of their MDG predecessors while others, like SDG 11, are novel additions. SDG 11 recognizes that half of the world’s population presently resides in cities, and acknowledges that the continued expansion of cities means metropolitan areas will play a central role in sustainable development efforts.

Climate change is the quintessential transnational challenge. To meet this challenge requires the cooperation of nearly two-hundred countries whose governments hold varying degrees of commitment on environmental efforts. SDG 11 presents an opportunity to combat climate change through metropolitan-level collaboration, while avoiding political and bureaucratic obstacles at the national levels of government. Every city faces unique sustainability challenges, but there are many shared challenges that are inherent to urban areas. A platform for cities to engage, collaborate, and self-regulate could produce tangible strides on issues of sustainability, and SDG 11 could provide that space.

The Value of a Transnational Municipal Network

A metropolitan-level approach to sustainable development recognizes that climate change, while international in scope, possesses “different histories and geographies, varying across time and space and in its implications for economies and societies” as noted by Professor Harriet Bulkeley. Moreover, the city is a center of innovation. It possesses the resources and diversity needed to develop creative, groundbreaking approaches to sustainable development. SDG 11 has the potential to harness the innovative capacity of major metropolitan areas and provide a platform for the exchange of solutions through a transnational municipal network. According to research published through the Brookings Institution’s Metropolitan Policy Program, cities would benefit from greater collaboration with one another to “spread best practices, embrace new technologies, and replicate other creative solutions adopted elsewhere.”

Under many circumstances, municipalities have authoritative capacity, through regulatory power, to implement their own sustainability initiatives. Utilizing this capacity, SDG 11 could encourage cities to sign on to environmental agreements, address common challenges to sustainability, and cooperate in finding solutions for a diverse spectrum of metropolitan spaces. A transnational municipal network would offer a platform for these activities. It is sensible that a group of entities, sharing similar goals and facing similar challenges, be provided with a space in which to confront these challenges in concert.

Current Trends in Metropolitan Sustainability Initiatives

City-to-city collaboration is not a novel idea, and there are many city partnerships working at local, national and international levels. Cities like New York utilize public-private partnerships to foster economic growth, sustainable development, and to achieve various other objectives. However, many of these partnerships involve collaboration between the city and private partners, as well as civil society organizations. City-to-city partnerships are less common, but do exist. There are regionally-based partnerships such as the European Innovation Partnership for Smart Cities and Communities, and globally-oriented initiatives such as the International Council for Local Environmental Initiatives (ICLEI), and C40 cities. Until 2011, the United Nations Environment Programme (UNEP) also operated a Climate Neutral Network, though membership was limited to ten countries.

Despite the presence of numerous nonprofits and partnerships aimed at sustainable urban development, participation in such entities is largely limited to those cities which already possess the means and willingness to self-regulate in order to meet sustainability goals. An analysis of different transnational city networks illustrated that such networks are largely “networks of pioneers, for pioneers.” Where SDG 11 could prove most valuable is if it is able to improve participation and self-regulation of cities less active in the sustainability movement. None of the aforementioned partnerships possess the global exposure of the new UN goals. Perhaps by leveraging the expertise and resources of partnerships already underway, a transnational municipal network under the direction of the UN may be able to entice action in cities of UN member states which are less active in the sustainable development movement. It could also encourage funding from private actors towards sustainability initiatives in cities that lack the necessary financial resources to undertake such projects.

Like their MDG counterparts, the viability of the Sustainable Development Goals has been met with some skepticism. Political leaders and scholars alike have voiced concern over the scope and structure of the SDGs. UK Prime Minister David Cameron suggested that there are simply too many goals, and this may muddle their overarching message. Yet a goal such as SDG 11 has greater capacity to include community initiatives, through emphasis on the metropolitan level, and thus develop more tangible results than the more abstract MDGs. A key determinant in achieving SDG 11, and the SDGs generally, will be whether the goals can in fact foster greater commitment and participation of local communities in the sustainable development movement.

Madeleine Wykstra is a J.D. candidate at Berkeley Law. She is a student contributor for Travaux.