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The Interaction between an Agreement on Biodiversity Beyond National Jurisdiction and the Law of the Sea

Ong, DM (2023) The Interaction between an Agreement on Biodiversity Beyond National Jurisdiction and the Law of the Sea. In: Borg, S, Attard, F and Vella de Fremeaux, P, (eds.) Research Handbook on Ocean Governance Law. Research Handbooks in Environmental Law series . Edward Elgar, Cheltenham, pp. 220-265. ISBN 9781839107689

Implications of an Agreement on Biodiversity Beyond National Jurisdiction for the Interplay between Law of the Sea.pdf - Accepted Version

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Part I will focus on specific issues identified in the revised draft text that need to be addressed to ensure both the clarity and coherence of the final agreement, as well as the proper implementation of the future Biodiversity Beyond National Jurisdiction (BBNJ) Agreement, when it enters into force. In doing so, this contribution juxtaposes selected negotiating text provisions against, inter alia, the relevant ‘international best practice’ on these issues. The purported ‘international best practice’ on these topics is in turn drawn from a combination of relevant law of the sea, international environmental law, as well as international case law jurisprudence elaborating on the procedural and substantive aspects, and especially the thresholds, of these rights and obligations.
In PART II: FOCUS ON ENVIRONMENTAL IMPACT ASSESSMENT AND MARINE PROTECTED AREAS The set of legal issues arising from the application of the EIA principle to all types of resource collection activities within the ABNJ can be encapsulated into three related aspects, namely, the legal status of this principle under international law generally; the legal definition of what constitutes EIA; and the legal threshold at which EIA becomes a specific international obligation in the State sponsoring (or otherwise authorizing and/or supporting) the proposed activities concerned. This section first confirms the legal status of the international obligation to conduct EIA for activities undertaken in ABNJ as an obligation of customary international law. In doing so, it will also establish this obligation as a corollary to the due diligence principle that is applicable under international law as an obligation of performance (or conduct), the failure of which would in turn invite consideration of possible State responsibility (and liability) for any harm arising from the inadequate performance of any EIA undertaken. The principle of due diligence as an abiding notion in public international law now has a particular resonance within the relentless rise in the importance of international environmental law. Where there is an international obligation of performance (or conduct), then due diligence is arguably the test that international law applies to gauge/measure whether such performance as required by the obligation has indeed been fulfilled.

Item Type: Book Section
Additional Information: This is a draft chapter/article. The final version is available in Research Handbook on Ocean Governance Law edited by Edited by Simone Borg, Professor, Head of Department of Environmental Law and Resources Law, Felicity G. Attard, Lecturer, Department of International Law and Patricia Mallia Vella de Fremeaux, Associate Professor, Head of Department of International Law, Faculty of Laws, University of Malta, Malta published in 2023, Edward Elgar Publishing Ltd http://doi.org/10.4337/9781839107689
Subjects: K Law > K Law (General)
Divisions: Law
Publisher: Edward Elgar
SWORD Depositor: A Symplectic
Date Deposited: 23 Jan 2024 14:52
Last Modified: 23 Jan 2024 14:52
Editors: Borg, S, Attard, F and Vella de Fremeaux, P
URI: https://researchonline.ljmu.ac.uk/id/eprint/22371
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