The analysis “IUCN-HSA Policy Brief: EIAs in ABNJ: Effects or location-based?” explores whether it would be both consistent with international law for an international legally binding instrument on marine biodiversity in areas beyond national jurisdiction (BBNJ) to require parties to conduct an environmental impact assessment of all activities that have an impact in areas beyond national jurisdiction, or merely of activities taking place in such areas. The analysis explores obligations under:

• “No harm” principle;

• Trail Smelter Arbitration (United States v. Canada) (1938 and 1941) 3 RIAA 1905; (“No State has the right to use or permit the use of its territory in such a manner as to cause injury by the emission of fumes in or transported to the territory of another or the properties or persons therein, when the case is of serious consequence and injury is established by clear and convincing evidence”); 

• Principle 2 of the Rio Declaration on Environment and Development (“States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”); 

• Customary International Law; and 

• Article 194(2) of the United Nations Convention for the Law of the Sea (UNCLOS) (“States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention”). 

The paper concludes that under UNCLOS, customary international law international jurisprudence and several national laws, it would be both consistent with international law and would assist the implementation of States’ obligations for draft Article 22(3) of BBNJ to require EIAs for all activities that have an impact in ABNJs.

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About the Author

Cymie Payne is Associate Professor at Rutgers University, focusing on international and environmental law. She has appeared at the International Tribunal for the Law of the Sea on behalf of the International Union for Conservation of  Nature (IUCN). As legal counsel with the UN Security Council's United Nations Compensation Commission in Geneva, Switzerland, she participated in landmark decisions on the legal responsibility of aggressor states for the restoration and remediation of damage to the environment from armed conflict. As Director of the Global Commons Project at University of California Berkeley’s Center for Law, Energy and the Environment, she focused on the linkage of state and international climate policy, particularly with respect to emissions trading systems; conflicts of  state law with international trade; and regulating risks of new  technologies such as carbon sequestration. She previously practiced natural resource and environmental law at the U.S. Department of the Interior and the law firm of Goodwin, Procter.