Implementing the rule of law for nature in the global marine commons: developing environmental assessment frameworks

The anthropocene era has brought with it increased threats to the biodiversity of the world’s oceans. Until the latter half of the twentieth century, human use of the oceans beyond a narrow coastal belt was largely confined to navigation, fishing, whaling and from the mid nineteenth century, the laying of submarine cables and pipelines. With the development of the continental shelf and the exclusive economic zone, coastal States have extended their jurisdictional reach to a wider offshore domain for purposes such as resource exploitation, marine scientific research and the generation of energy from wind and waves. Other developments such as the depletion of inshore fish stocks, an increase in global maritime trade and transport and the search for new resources have led to greater human activity in marine areas beyond national jurisdiction (ABNJ). These activities have expanded to include more frequent and invasive marine scientific research expeditions, associated bioprospecting for marine genetic resources, exploration for deep seabed minerals and geo-engineering experiments utilising the capacity of the ocean to absorb excess carbon dioxide from the earth’s atmosphere. The extended spectrum of human activities now taking place in ABNJ has the potential to harm the highly interconnected and sensitive ecosystems of these areas if not carefully managed now and into the future. International law can play a vital role in preventing and mitigating the adverse impacts of human activities on the rich repository of marine biodiversity in ABNJ through the further development of environmental assessment in ABNJ. Environmental assessment is acknowledged as a key element in the suite of tools for biodiversity conservation, and its application to activities affecting the marine environment has been endorsed in many international law instruments and policy statements. Currently there is limited legal and institutional provision for the implementation of environmental assessment in ABNJ. This chapter examines international law obligations for environmental assessment in the world’s oceans and the complex challenges involved in implementing these in ABNJ. The fragmentary nature of the legal and institutional framework for environmental governance in ABNJ is discussed as well as some initiatives being taken at the global level to develop a more comprehensive framework for environmental assessment in these extensive areas of the ocean.