Internationalization of EIA Rules in the BBNJ Agreement: Impediments and Possible Solutions

Abstract

The International Legal Agreement for the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement) has been launched. The final agreement emphasizes that states are obliged to conduct Environmental Impact Assessment (EIA), providing more discretion to states that control planned activities. However, the EIA under the BBNJ negotiations, as well as the principles of international environmental law, customary international law and international organizations all call for the internationalization of the EIA and the restraint of states’ power and activities in areas beyond national jurisdiction (ABNJ). Therefore, an internationalized EIA system that subjects the state-led EIA process to global oversight or guidance is imperative. To demonstrate the necessity of EIA’s internationalization, this article analyses it from the multiple perspectives of international law and its significance to the BBNJ Agreement. Furthermore, the article examines the submissions of the Parties to the BBNJ Agreement and indicates that there is still an opportunity to internationalize the EIA system. The article concludes with recommendations that include the use of soft law documents, the internationalization of EIA guidance through list of activities, as well as the internationalization of EIA oversight through the process of public notification and consultation and rules on responsibility and liability.