Spain must step up and get the EU to revise its worrying stance on environmental impact assessment of activities that may cause transboundary pollution in the negotiations on the UN treaty on the governance of the high seas.
Spain, as a country with a long maritime and fishing tradition, and whose waters are home to the greatest marine biodiversity in Europe, has a special responsibility to ensure that the future UN legally binding instrument on marine biodiversity in areas beyond national jurisdiction (BBNJ), whose fourth and final round of negotiations has been postponed tentatively until spring 2022 due to the outbreak of COVID, is a treaty that provides a once in a generation opportunity to protect that marine ecosystems in the high seas. Spain has a lot at stake in this high-level game and in getting the treaty over the finish line.
This important treaty, which has also been called the Global Ocean Treaty or treaty for the governance of the high seas, is a legally binding instrument aimed at the protection of marine biological diversity that transcends national jurisdictions, negotiated within the framework of the United Nations Convention on the Law of the Sea (UNCLOS), including specifically Article 192, which serves as a reminder that “States have an obligation to protect and preserve the marine environment”.
We live in an undeniable environmental crisis, as recognised by the EU in the European Green Deal, a time when the threats to our seas and ocean are increasingly worrying due to climate change and the consequential acidification of their waters; anthropogenic underwater noise; plastic and micro-plastic pollution; overexploitation of fisheries resources; and new technologies that open the door to deep sea mining. The need for the international community to equip itself with a BBNJ Treaty to effectively regulate the protection of marine biodiversity and the meaningful sustainable use of the waters of the high seas is therefore increasingly pressing.
The new treaty will establish binding rules for the conservation of biodiversity in the high seas and will also address significant gaps in ocean governance, which the current fragmented regulatory regimes have failed to do. With the introduction of marine protected areas in the high seas, the establishment of mechanisms to share the benefits of marine genetic resources, capacity building, and the obligation to conduct environmental impact assessments for activities that have an impact in international waters, which account for around two thirds of the total oceans, the treaty can bring much needed coherence to ocean governance. In this regard, the issue of environmental impact assessments is of particular significance.
It is important to remember that neither marine species nor pollution know borders and that the lack of an effective management framework for the high seas would leave biodiversity vulnerable indefinitely. In that sense, it is essential for governments to include provisions on effective environmental impact assessment procedures that adequately consider the problem of transboundary pollution that many human activities can cause in the high seas, which belong to no one exclusively, but to all of us at the same time. So far, many regions and countries, including the EU representation in the negotiations, have shied away from being ambitious on this issue and may have held back countries with more advanced and rigorous approaches.
The nature and threat posed by anthropogenic underwater noise, one of the many transboundary pollutants endangering the high seas and its species, is perhaps the best example of this. Underwater noise is generated by a number of human activities, the most significant of which are oil and gas exploration (e.g., during seismic surveys) and commercial shipping. An extensive and rapidly growing scientific research base has documented the significant adverse effects of noise on a wide range of marine species, including cetaceans, fish, cephalopods, crustaceans, corals and also plankton (the basis of the marine food chain), and therefore proper assessment and management of forms of transboundary pollutions, such as underwater noise, remains essential to protecting our biodiversity.
Seas and the ocean are a very dark environment; even in the most transparent water, light does not penetrate more than a few tens of metres. In water, sound travels five times faster, and many times further, than in air. Whales, sperm whales, dolphins, beaked whales, etc. have evolved to take advantage of this perfect sound environment (and also other marine animals, such as some fish and invertebrates) and have developed a sophisticated acoustic system that is extremely sensitive to sound and on which they depend entirely to locate themselves, socialise and reproduce, detect predators, and forage for food. The intrusion of high levels of noise pollution into their environment threatens their ability to effectively carry out all of these activities that are critical for survival. Since sound travels everywhere underwater and at great distances from the point of emission, it is essential to manage underwater noise according to the effects it causes and not according to where it originates.
In other words, it is crucial that a State Party’s requirement for an environmental impact assessment applies to “all activities that have an impact in areas beyond national jurisdiction” and not only to “activities conducted in areas beyond national jurisdiction”.
Consider, for example, oil and gas exploration: if a company is looking for new hydrocarbon deposits within a country’s Exclusive Economic Zone, the noise emitted by this exploration activity may well affect biodiversity in areas beyond that territory, either in other countries’ waters or in areas beyond national jurisdiction. This does not seem fair, as the supposed benefits are reaped by a few, but the consequences are suffered by all.
Over the past decades, the European Union and its Member States, and therefore by extension Spain, has generally acted as a global environmental leader and has advocated progressive and ambitious international environmental conservation efforts. An important aspect of this effort has been the spread of an effects-based approach to impact assessments. As such, we see this inconsistency of positioning so close to the finishing line as a cause for concern.
A milestone on the EU’s progressive work on environmental conservation has been the adoption of measures and guidelines to address the adverse effects of underwater noise through impact assessments under the Convention on the Conservation of Migratory Species of Wild Animals (CMS), the Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea and Contiguous Atlantic Area (ACCOBAMS), and the Espoo Convention or the Convention on Biological Diversity (CBD). The EU and its Member States have also committed to ensuring that their activities in the territory under their control do not cause damage to the environment of other states or areas beyond their own coasts (e.g. Rio Declaration, Principle 2).
There is therefore a sound basis for including similar provisions in the new BBNJ Treaty. However, inconsistently, the European Union has fallen short of a strong voice for such an approach in these negotiations.
Sovereignty concerns do not justify a location-based (rather than effects-based) approach to the obligation to conduct an environmental impact assessment for activities generating underwater noise or other activities with potential transboundary effects.
The EU must change its increasingly worrying position on this issue and adopt an approach consistent with its usual progressive stance on environmental issues and ocean protection. Its role in the current negotiations on the BBNJ Treaty is essential to ensuring the adoption of a treaty that will effectively protect the high seas over the coming decades from the multiple environmental problems it already faces and the new threats that are looming. Spain, as part of the European Union and as a country with an interest in the conservation of the oceans given their environmental and socio-economic importance, can and should take a leading role in the conservation of biodiversity in the high seas.