mineral resources of its continental shelf, but on the other hand, accentuate its
creeping jurisdiction on areas beyond national jurisdiction and potentially limit the
adoption conservation measures in those areas. For the EU, at least, the legally
binding instrument must state that the marine protected area should be created “with
due regard to the rights and legitimate interests of any coastal State”, as Article
142 of the UNCLOS provide regarding the conduct of activities in the Area.
3.1.3 Environmental Impact Assessment
Third, although there is, in international law, a customary obligation to conduct
environmental impact assessment
56 reiterated in Article 206 of the UNCLOS, those
provisions have been interpreted as not being precise enough, necessitating the
establishment of a concrete framework for the conduct of such assessments. Therefore, the future regime should encompass elements related to the conduct of environmental impact assessments by States for all activities that could possibly have a
detrimental effect on marine biological diversity in areas beyond national jurisdiction. Nonetheless, uncertainty remains as regards the content of the future agreement: what should be the threshold of nuisance acceptable for activities at sea? Is a
centralized institution gathering the environmental impact assessments and harmonizing all the criteria necessary? In addition, to what extent should public participation be requested? The EU, in this field, appears to be in favour of the determination
of the threshold and criteria to decide on the conduct, by Parties to the agreement and
not by a new body, of environmental impact assessment. The Union could agree to
the reference to development of “strategic impact assessment” and of
“transboundary impacts”, and “noted that the ILBI should provide for a public
statement on the reasoning behind a decision.”
57 Nonetheless, the Union argued
against any obligatory monitoring and review as regards EIA and “emphasized that
States should decide monitoring and review modalities.”
58
3.1.4 Transfer of Marine Technology and Capacity Building
Finally, as regards transfer of marine technology and capacity building, in accordance with the equitable basis stipulated by the UNCLOS (in its Part XIV, and more
especially Article 266), the future instrument would have to stress the obligations of
developed States in this matter. The priority, according to the EU, would be to assist
56 As it has been recalled by the EU during the last PrepCom. Id. at pp. 12–13. See the Pulp Mills
case, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010,
p. 14, para 204.
57 IISD Reporting Services, “Summary of the fourth session of the preparatory committee on marine
biodiversity beyond areas of national jurisdiction: 10-21 July 2017”, Id. at p. 13.
58 Ibid.
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creeping jurisdiction on areas beyond national jurisdiction and potentially limit the
adoption conservation measures in those areas. For the EU, at least, the legally
binding instrument must state that the marine protected area should be created “with
due regard to the rights and legitimate interests of any coastal State”, as Article
142 of the UNCLOS provide regarding the conduct of activities in the Area.
3.1.3 Environmental Impact Assessment
Third, although there is, in international law, a customary obligation to conduct
environmental impact assessment
56 reiterated in Article 206 of the UNCLOS, those
provisions have been interpreted as not being precise enough, necessitating the
establishment of a concrete framework for the conduct of such assessments. Therefore, the future regime should encompass elements related to the conduct of environmental impact assessments by States for all activities that could possibly have a
detrimental effect on marine biological diversity in areas beyond national jurisdiction. Nonetheless, uncertainty remains as regards the content of the future agreement: what should be the threshold of nuisance acceptable for activities at sea? Is a
centralized institution gathering the environmental impact assessments and harmonizing all the criteria necessary? In addition, to what extent should public participation be requested? The EU, in this field, appears to be in favour of the determination
of the threshold and criteria to decide on the conduct, by Parties to the agreement and
not by a new body, of environmental impact assessment. The Union could agree to
the reference to development of “strategic impact assessment” and of
“transboundary impacts”, and “noted that the ILBI should provide for a public
statement on the reasoning behind a decision.”
57 Nonetheless, the Union argued
against any obligatory monitoring and review as regards EIA and “emphasized that
States should decide monitoring and review modalities.”
58
3.1.4 Transfer of Marine Technology and Capacity Building
Finally, as regards transfer of marine technology and capacity building, in accordance with the equitable basis stipulated by the UNCLOS (in its Part XIV, and more
especially Article 266), the future instrument would have to stress the obligations of
developed States in this matter. The priority, according to the EU, would be to assist
56 As it has been recalled by the EU during the last PrepCom. Id. at pp. 12–13. See the Pulp Mills
case, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010,
p. 14, para 204.
57 IISD Reporting Services, “Summary of the fourth session of the preparatory committee on marine
biodiversity beyond areas of national jurisdiction: 10-21 July 2017”, Id. at p. 13.
58 Ibid.
394
P. Ricard