The inclusion of strategic environmental assessment into the new BBNJ Treaty. Perspective on the EU contribution to the effective protection of the marine environment in ABNJ

Pursuant to the “package deal”, in 2011 the international community committed itself to the conclusion of a legally binding instrument (the BBNJ Treaty) under the United Nations Convention on the Law of the Sea (UNCLOS), aimed at granting the conservation and sustainable use of marine biodiversity in Areas beyond national jurisdiction (ABNJ). With resolution 72/249, the United Nations General Assembly has, thus, convened three sessions of the intergovernmental conference on marine biodiversity of ABNJ, with a fourth one expected in the first half of 2020. As leading scholars have noticed, the BBNJ treaty has the challenging task to fit with the system of maritime zones established by the UNCLOS, so that the new provisions should be valid for different parts of the sea and at distinct levels of the water column. In such a fragmented landscape, and with the oceans even more threatened by potentially conflicting activities, at risk of endanger the marine biodiversity, an ecosystem-based approach to the protection of ABNJ seems the most suitable solution that delegations to the BBNJ should endorse. While, in accordance with the relevant provisions of the UNCLOS, some regional or ad hoc tools for the protection and preservation of the marine environment have already been developed, this paper will focus on the European Union (EU) proposal to include a reference to the Strategic Environmental Assessment (SEA) in the new BBNJ Treaty, as an instrument to comprehensively address the activities carried out in the oceans and their related threats (Article 28 of the Draft text). The SEA provision, which is gaining traction among most of the delegations, will be analysed through the lenses of the EU experience, particularly with regard to Directive 2001/42/EC (supplemented to Directive 85/337/EEC) which, together with the Kiev Protocol to the Espoo Convention, is a benchmark in the field. The paper will also take into account the State practice in the implementation of the Directive and the periodic reports of the Commission with a view to highlight the strengths and weaknesses of the inclusion of SEAs in the BBNJ Treaty. As a proactive and complete tool to define and evaluate environmental implications of activities, programmes and policies, the SEA has the potential to harmonize the protection of marine biodiversity in the various parts of the ABNJ, in line with Decisions XI/18 and XIII/3 of the Conference of the Parties of the Convention of the Biological Diversity. Although some delegations have already held that there is no obligation under the UNCLOS requiring States to evaluate the SEA of activities carried out in a given area, the inclusion of such provision seems fundamental to complement the more conventional Environmental Impact Assessments (EIAs). In fact, as shown at the EU level, while EIAs are limited in space and time, SEAs promote a broader environmental vision which considers the wide range of activities taking place in a defined geographic region. Through the consideration of environmental, societal and economic factors, SEAs can thus ensure the reduction of harms to the marine biodiversity and its protection in the medium and long terms. So far, SEAs have mainly been used in areas within national jurisdiction, but their extension to areas outside their jurisdiction, although challenging, would reveal fruitful for the coordination among sectorial bodies, for the long-term monitoring of their activities and for the proper conclusion of EIAs of a regional consistency. By way of example, a SEA would be fundamental in the Triangle Area of the Indian Ocean where the cumulative impact of the seabed mining exploration, bottom fishing and use of marine genetic resources should be evaluated to ensure, to the widest extent possible, the protection of the marine environment of the region. In fact, Regional Environmental Management Plans (REMPs) and EIAs have currently been carried out by the interested operators (like the contractors of the International Seabed Authority) without a much wider involvement of all the relevant stakeholders. To this extent, the future Scientific and Technical Committee, possibly established under the BBNJ Treaty, will be pivotal in ensuring that SEAs will take advantage of the engagement of regional international organisations, fisheries management organisations, treaty bodies and NGOs. If the inclusion of a SEA provision in the final text of the BBNJ Treaty is not yet secure, the EU is certainly expected to play a leading role in contributing to the effective protection of ABNJ, through its consolidated experience.