Originally from Natural Resources and the Law of the Sea: Exploration, Allocation, Exploitation of Natural Resources in Areas under National Jurisdiction and Beyond - International Law Institute Series on International Law, Arbitration and Practice, Volume 2

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I.    INTRODUCTION

A constitution for the oceans. This is how the President of the Third United Nations Conference on the Law of the Sea, Ambassador Tommy Koh, who presided over its conclusion, described the United Nations Convention on the Law of the Sea (UNCLOS). It is what UNCLOS has come to be known as in its more than 30 years of being in force. As it has been described, “[a] constitutional perspective suggests that UNCLOS was not intended to be comprehensive to the extent that there would be no need to create further law.”  However, there is an established system of governance which the international community is bound to work within. 

In a similar vein, the UN General Assembly (UNGA), in its annual omnibus resolution on the oceans and the law of the sea, has repeatedly recognized UNCLOS as “the legal framework within which all activities in the oceans and seas must be carried out.”  Borrowing parlance from the context of the European Union, UNCLOS has also been described as the “acquis” for oceans and the law of the sea.  These various descriptions all allude to UNCLOS as providing the set of “givens” in the law of the sea governance framework. 

In the context of negotiations over the development of an international legally binding instrument under UNCLOS on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ), UNCLOS has been placed front and center. The new international legally binding instrument is intended to be under UNCLOS.  The phrase, “under [UNCLOS],” is of primary importance. This author has previously suggested that this “reflects a form of hierarchy; a recognition of a superior status, perhaps even the constitutional status of UNCLOS.”  

This article focusses on the consideration of environmental impact assessments in the BBNJ discussions. Approaching it from a constitutional perspective of UNCLOS, this article examines the space for elaboration of a regime of environmental impact assessments in the context of the “givens” that a new instrument under UNCLOS must respect.