Reflections on the Environmental Impact Assessment in the BBNJ Agreement: Its Implications for the Conservation of Biological Diversity in the Marine Arctic beyond National Jurisdiction

Abstract

The BBNJ Agreement will affect legal frameworks for the conservation of marine biological diversity in various regions of the world ocean and the marine Arctic is no exception. As biological diversity in the marine Arctic is particularly vulnerable, the implications of the BBNJ Agreement for the conservation of biological diversity in the marine Arctic deserves serious consideration. Of particular note is the procedure for an environmental impact assessment (EIA). Given that damage to the environment may be irreversible, it is a prerequisite to conduct an EIA before authorizing planned activities, with a view to preventing environmental harm. An EIA constitutes a crucial element in the conservation of the marine environment, including biological diversity. Hence, this article examines the potential implications of the procedure for an EIA as set out under the BBNJ Agreement for the conservation of biological diversity in the marine Arctic beyond national jurisdiction.

Keywords:

• BBNJ Agreement
• environmental impact assessment (EIA)
• Indigenous peoples
• marine Arctic
• marine biological diversity
• marine environment

Acknowledgments

This article is based on the author’s keynote at the roundtable seminar of Future Arctic Law and Governance (FALG) Network at the Faculty of Law, University of Copenhagen, Denmark on 1 June 2023. The author thanks anonymous reviewers for their useful comments on an earlier draft of this article.

Disclosure Statement

No potential conflict of interest was reported by the author(s).

Notes

1 Agreement under the UN Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction. Adopted 19 June 2023. Not yet in force. Hereinafter, BBNJ Agreement. The text is available at: https://treaties.un.org/doc/Publication/CTC/Ch_XXI_10.pdf (accessed 14 March 2024).

2 There are some uncertainties as to the definition of the Arctic. For example, the Arctic Monitoring and Assessment Programme (AMAP) proposes four criteria: the Arctic Circle, climate, vegetation, and oceanography. According to the simplest definition, the Arctic is defined by the Arctic Circle (66°32’N). On the basis of the treeline, the Arctic can also be defined as the inner-circle area of the treeline, which is the northern limit of tree growth, or, precisely speaking, “a transition zone between continuous boreal forest and tundra, with isolated stands of trees.” AMAP, Assessment Report: Arctic Pollution Issues (Arctic Monitoring and Assessment Programme, Oslo, Norway, 1998), 9–10. In any event this article focuses on marine spaces beyond national jurisdiction in the Central Arctic Ocean.

3 2023 BBNJ Agreement, Art 2. The BBNJ Agreement does not provide a definition of the concept of conservation, although it defines “sustainable use” as “the use of components of biological diversity in a way and at a rate that does not lead to a long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations” (Art 1(13)). Given that “conservation” and “sustainable use” are used together, it seems that the concept of “conservation” includes elements of protection and use.

4 Biological diversity in the Arctic is vulnerable to human activities and environmental change, including climate change. See Arctic Council, Conservation of Arctic Flora and Fauna (CAFF), State of the Arctic Marine Biodiversity Report (2017), 183–185 at: https://oaarchive.arctic-council.org/server/api/core/bitstreams/e4f859d4-8396-4300-a4f0-878ab96f2ec3/content (accessed 13 March 2024).

5 The implications of the BBNJ Agreement for the marine Arctic have been discussed by commentators before the adoption of the Agreement. See Timo Koivurova and Richard Caddell, “Managing Biodiversity Beyond National Jurisdiction in the Changing Arctic” (2018) 112 AJIL Unbound 134; Vito De Lucia and Philippe Peter Nickels, “Reflecting on the Role of the Arctic Council vis-à-vis a Future International Legally Binding Instrument on Biodiversity in Areas Beyond National Jurisdiction” (2020) 11 Arctic Review on Law and Policies 189; Vito De Lucia, “The BBNJ Negotiations and Ecosystem Governance in the Arctic” (2022) 142 Maine Policy 103756.

6 The submissions of Canada, Denmark (vis-à-vis Greenland and the Faroe Islands), Iceland, Norway, and the Russian Federation over the continental shelf beyond 200 nautical miles overlap in the marine Arctic.

7 United Nations Convention on the Law of the Sea (UNCLOS), adopted 10 December 1982, entered into force 16 November 1994, 1833 UNTS 397, Art 1(1). See also Durham University, “Briefing Notes for IBRU Arctic Map Series,” at: https://www.durham.ac.uk/media/durham-university/research-/research-centres/ibru-centre-for-borders-research/maps-and-databases/arctic-maps-2024-january/Briefing-notes-for-IBRU-Arctic-map-series-January-2024.pdf (accessed 14 March 2024).

8 While only small pockets of the Area will remain after the coastal states have delineated their continental shelves beyond 200 NM, there is 2.8 million km² of high seas in the marine Arctic. See Timo Koivurova and Pamela Lesser, Environmental Impact Assessment in the Arctic: A Guide to Best Practice (Edward Elgar, 2016), 227.

9 See Alan Boyle and Catherine Redgwell, Birnie, Boyle, and Redgwell’s International Law and the Environment, 4th edition (Oxford University Press, 2021), 184.

10 Gabcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment ICJ Reports 1997, p. 7, [140].

11 The importance of EIA is emphasized by Article 17 of the 1992 Rio Declaration on Environment and Development, at: https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_CONF.151_26_Vol.I_Declaration.pdf (accessed 13 March 2024).

12 For a thorough analysis of EIA in the Arctic, see Timo Koivurova, Environmental Impact Assessment in the Arctic: A Study of International Legal Norms (Ashgate, 2002); Koivurova and Lesser, note 8.

13 Alex G. Oude Elferink, “Environmental Impact Assessment in Areas beyond National Jurisdiction” (2012) 27 International Journal of Marine and Coastal Law 449, 455; Robin Warner, “Environmental Assessment in Marine Areas Beyond National Jurisdiction” in Rosemary Rayfuse (ed), Research Handbook on International Marine Environmental Law (Edward Elgar, 2015), 293; Neil Craik and Kristine Gu, “Implementing Environmental Impact Assessment in Areas Beyond National Jurisdiction: Epistemic, Institutional and Normative Challenges” in Rosemary Rayfuse, Aline Jaeckel and Natalie Klein (eds), Research Handbook on International Marine Environmental Law, 2nd edn (Edward Elgar, 2023), 428, 446.

14 Yoshifumi Tanaka, The South China Sea Arbitration: Toward an International Legal Order in the Oceans (Hart Publishing, 2019), 143.

15 Eike Blitza, “Article 205” in Alexander Proelss (ed), United Nations Convention on the Law of the Sea. A Commentary (Hart, 2017), 1375. In this regard, Craik argued that “‘significance’ as a threshold is lower than ‘serious’ or ‘substantial.’” Neil Craik, The International Law of Environmental Impact Assessment: Process, Substance and Integration (Cambridge University Press, 2008), 61.

16 For an EIA in the polar regions, see Romain Chuffart and Julia Jabour, “Environmental Impact Assessment in the Polar Regions” in Yoshifumi Tanaka, Rachael Lorna Johnstone and Vibe Ulfbeck (eds), Routledge Handbook of Polar Law (Routledge, 2023), 189.

17 For a recent study on EIA, see Kevin Hanna (ed), Routledge Handbook of Environmental Impact Assessment (Routledge, 2022).

18 For a list of these treaties, see Astrod Epiney, “Environmental Impact Assessment” in Rügier Wolfrum (ed), Max Planck Encyclopedias of International Law (Oxford University Press, online), [5] et seq. See also Craik, note 15, p. 90 et seq; P. Sands, J. Peel, A. Fabra et al., Principles of International Environmental Law, 4th edn, (Cambridge University Press, 2018), 657 et seq.

19 For definitions of EIA, see UN Environment, Assessing Environmental Impacts—A Global Review of Legislation (Nairobi, Kenya, 2018), 2.

20 Convention on Environmental Impact Assessment in a Transboundary Context, adopted 25 February 1991, entered into force 10 September 1997, 1989 UNTS 310, Art 1(iv).

21 International Association of Impact Assessment (IAIA), Principles of Environmental Impact Assessment Best Practice, [2.1] at: https://www.iaia.org/best-practice.php (accessed 13 March 2024).

22 Yoshifumi Tanaka, “Reflections on Time Elements in the International Law of the Environment” (2013) 73 ZaöRV/Heidelberg Journal of International Law 139, 168.

23 Barry Sadler and Mary McCabe (eds), Environmental Impact Assessment Training Resource Manual, 2nd edn (UNEP, 2002), 105.

24 Boyle and Redgwell, note 9, 184; Craik, note 15, 4; UN Environment, note 19, 3. See also Principle 7 of the UNEP Goals and Principles of Environmental Impact Assessments (1987), at: https://elaw.org/system/files/unep.EIA_.guidelines.and_.principles.pdf (accessed 13 March 2024).

25 UN Environment, note 19, 3; Boyle and Redgwell, note 9, 184.

26 For a discussion of the origin and development of SEA, see Maria Rosario Partidario, “Strategic Environmental Assessment: A Spectrum of Understandings” in Hanna, note 17, 22. According to Partidario, the term “SEA” was proposed in the late 1980s by Wood and Djeddour. Ibid, 23. See also Christopher Wood and Mohammed Djeddour, “Strategic Environmental Assessment: EA of Policies, Plans and Programmes” (1992) 10(1) Impact Assessment 3; Craik and Gu, note 13.

27 The Organisation for Economic Co-operation and Development (OECD), Applying Strategic Environmental Assessment: Good Practice Guidance for Development Cooperation (OECD, Paris, 2006), 25; Craik, note 15, 156. The understanding of SEA is not uniform. In this regard, Maria Rosario Partidario has suggested two contrasting models: the impact assessment mode of SEA and the strategic thinking model of SEA. See Maria Rosario Partidario, note 26, 27–28.

28 Craik and Gu, note 13, 194.

29 See also ibid, 194–195.

30 Generally, on the EIA process, see Hussein Abaza, Ron Bisset, and Barry Sadler, Environmental Impact Assessment and Strategic Environmental Assessment: Towards an Integrated Approach (UNEP, 2004), 44–62; Kevin Hanna and Lauren Arnold, “An Introduction to Environmental Impact Assessment” in Hanna, note 17, 3, 7–17; Craik, note 15, 25–34.

31 Hanna and Arnold, note 30, 7; UN Environment, note 19, 31; Craik, note 15, 27–29.

32 Hanna and Arnold, note 30, 9; UN Environment, note 19, 41; Craik, note 15, 29–30.

33 Craik, note 15, 30–31; Hanna and Arnold, note 30, 10–11.

34 Abaza, Bisset and Sadler, note 30, 49.

35 Hanna and Arnold, note 30, 12–14; Craik, note 15, 32–33.

36 UN Environment, note 19, 65.

37 Hanna and Arnold, note 30, 14; Craik, note 15, 33–34.

38 UN Environment, note 19, 50.

39 Hanna and Arnold, note 30, 10.

40 Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, ICJ Reports 2010, p. 14, [204]; Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica), Judgment, ICJ Reports 2015, p. 665, [104] (hereinafter, Costa Rica v. Nicaragua/Nicaragua v. Costa Rica).

41 Responsibilities and Obligations of States with Respect to Activities in the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 10 [148] (Advisory Opinion No. 17).

42 The ITLOS Seabed Disputes Chamber, in its Advisory Opinion, stated that “the obligation to conduct an environmental impact assessment is a direct obligation under the Convention and a general obligation under customary international law.” Ibid, [145]. To support the statement, however, the Chamber relied on the Pulp Mills judgment that related to the transboundary EIA. Hence some doubts can be expressed as to whether the dictum of the Chamber can be interpreted to mean that the Chamber accepted the customary law character of the obligation to conduct an EIA in general. Related to this, Boyle and Redgwell have argued that “at present general international law does not require states to assess effects wholly within their own borders.” Boyle and Redgwell, note 9, 186.

43 Gunnar Sander, “International Legal Obligations for Environmental Impact Assessment and Strategic Environmental Assessment in the Arctic Ocean” (2016) 31 International Journal of Marine and Coastal Law 88, 97.

44 While the 2003 Kiev Protocol is a legally binding instrument on SEA, it does not apply to areas beyond national jurisdiction. Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context, adopted 21 May 2003, entered into force 11 July 2010, 2685 UNTS 140.

45 Pulp Mills on the River Uruguay, note 40, [205].

46 Costa Rica v. Nicaragua/Nicaragua v. Costa Rica note 40, [104].

47 For these components in the jurisprudence, see Yoshifumi Tanaka, “Obligation to Conduct an Environmental Impact Assessment (EIA) in International Adjudication: Interaction between Law and Time” (2021) 90 Nordic Journal of International Law 86, 114.

48 Advisory Opinion No. 17, note 41, [149].

49 Separate Opinion of Judge Bhandari in Costa Rica v. Nicaragua/Nicaragua v. Costa Rica, note 40, [32].

50 Separate Opinion of Judge Donoghue in Costa Rica v. Nicaragua/Nicaragua v. Costa Rica, note 40, [19].

51 For a list of parties to the Espoo Convention, see https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVII-4&chapter=27&clang=_en (accessed 13 March 2024).

52 Tanaka, note 47, 116. On this issue, see also Timo Koivurova, “Could the Espoo Convention Become a Global Regime for Environmental Impact Assessment and Strategic Environmental Assessment?” in Robin Warner and Simon Marsden (eds), Transboundary Environmental Governance: Inland, Coastal and Marine Perspectives (Ashgate, 2021), 323.

53 Costa Rica v. Nicaragua/Nicaragua v. Costa Rica, note 40, [153].

54 Meinhard Doelle and Gunnar Sander, “Next Generation Environmental Assessment in the Emerging High Seas Regime? An Evaluation of the State of the Negotiations” (2020) 35 International Journal of Marine and Coastal Law 498, 513.

55 The South China Sea Arbitration Award (Merits) (2020) 33 RIAA p. 541, [991]. In this case, eventually the Arbitral Tribunal found that China had not fulfilled its duties under Article 206 of UNCLOS because China had delivered no assessment in writing to that forum or to any other international body. Ibid.

56 The United Nations Environmental Protection Guidelines defines compliance as “the fulfilment by the contracting parties of their obligations under a multilateral environmental agreement and any amendments to the multilateral environmental agreement.” The 2002 United Nations Environmental Protection Guidelines on Compliance with and Enforcement of Multilateral Environmental Agreements, [9(a)], at: https://wedocs.unep.org/bitstream/handle/20.500.11822/17018/UNEP-guidelines-compliance-MEA.pdf?sequence=1&isAllowed=y (accessed 13 March 2024). Generally, on compliance procedures, see Yoshifumi Tanaka, “Compliance Procedures: Multilateral Environmental Agreements (MEAs)” in Hélène Ruiz Fabri (ed.), Max Planck Encyclopedia of International Procedural Law (OUP, 2021).

57 Institut de Droit International, “Resolution: Obligations Erga Omnes in International Law” (Krakow Session 2005), Article 3. This view is supported by commentators, including Chandrasekhara Rao and Philippe Gautier, The International Tribunal for the Law of the Sea: Law, Practice and Procedure (Edward Elgar, 2018), 327; Yoshifumi Tanaka, “Legal Consequences of Obligations Erga Omnes in International Law” (2021) 68(1) Netherlands International Law Review 1, 20–24. See also the Dissenting Opinion of Judge Crawford in Obligations Concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v UK) (Preliminary Objections), Judgement, ICJ Reports 2016, 833 [22].

58 The criteria may vary according to commentators. For instance, Doelle and Sander identified the following criteria: integrated, tiered assessment, cooperative assessments, appropriate assessment streams, rights and interests of indigenous peoples, transparency and accountability, sustainability-based assessments, comparative evaluation of alternatives, a cumulative effects mindset, meaningful public participation, learning facilitated throughout, implementation, monitoring and follow-up, and independent and impartial administration and assessment review. Doelle and Sander, note 54, 510–516. The criteria are based on Next Generation Environmental Assessment initially developed in a Canadian context. Ibid, 510.

59 1991 Espoo Convention, Art 1(viii). See also Rachael Lorna Johnstone, Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility (Brill, 2015), 144–145; Sander, note 43, 99; Robin Warner, “Principles of Environmental Protection at the Poles” in Karen N. Scott and David L. VanderZwaag, Research Handbook on Polar Law (Edward Elgar, 2020), 326, 341.

60 Referring to the Pulp Mills judgment, the ITLOS Seabed Disputes Chamber stated, in Advisory Opinion No. 17, that “the Court [ICJ]’s reasoning in a transboundary context may also apply to activities with an impact on the environment in an area beyond the limits of national jurisdiction.” Advisory Opinion No. 17, note 41, [148].

61 Emphasis added. In the fourth session of the Preparatory Committee of 2017, China, Russia and the United States opposed the SEA. (2017) 25 Earth Negotiations Bulletin no. 141, 13.

62 Article 1(10). Further Revised Draft Text of an Agreement under the United Nations Convention on the Law of the Sea on the Conservation and Sustainable Use of Marine Biological Diversity of Areas beyond National Jurisdiction, 11 July 2022, Art 1(10) at: https://www.un.org/bbnj/(accessed 13 March 2024).

63 Option C of Article 1(10) of the Further Revised Draft Text referred to “planned activities.”

64 This point was confirmed by the ICJ in the Pulp Mill case, stating that an EIA “must be conducted prior to the implementation of a project.” Pulp Mills on the River Uruguay, note 40, [205].

65 Further revised draft text of an agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction, A/CONF.232/2022/5, 1 June 2022, [16]. Option A: “Strategic environmental assessment” means a higher level assessment process that can be used in three main ways: (a) to prepare a strategic development or resource use plan for a defined land and/or ocean area; (b) to examine the potential environmental impacts that may arise from, or impact upon, the implementation of government policies, plans and programs; and (c) to assess various classes or types of development projects, so as to produce general environmental management policies or design guidelines for the development classes or types; Option B: “Strategic environmental assessment” means the evaluation of the likely environmental effects, including health effects, which comprises determining the scope of an environmental report and its preparation, carrying out public participation and consultations, and taking into account the environmental report and the results of the public participation and consultations in a plan or programme.

66 In the 2nd session of the Intergovernmental Conference (25 March–5 April 2019), Canada took the position that it preferred using the Espoo Convention definition of SEAs. (2019) 25 Earth Negotiations Bulletin, No. 195, 15. Article 13 of the 2003 SEA Protocol requires each party to “endeavour to ensure that environmental, including health, concerns are considered and integrated to the extent appropriate in the preparation of its proposals for policies and legislation that are likely to have significant effects on the environment, including health.”

67 Doelle and Sander, note 54, 512.

68 Emphasis added. See also Article 8(1) of the BBNJ Agreement.

69 See also Article 38(1)(g) of the BBNJ Agreement.

70 Yoshifumi Tanaka, “Basic Principles of International Marine Environmental Law” in Rayfuse, Jaeckel and Klein (eds), note 13, 97. See also Separate Opinion of Judge Cançando Trindade in the Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, ICJ Reports 2014, p. 226, [71].

71 Yoshifumi Tanaka, note 47, 102 and 120. See also Separate Opinion of Judge Cancando Trindade in Pulp Mills on the River Uruguay, note 40, [63].

72 The list in Article 35 of the BBNJ Agreement is mandatory. The contents of an EIA under Article 35 of the BBNJ Agreement appear to largely overlap Principle 4 of the UNEP Goals and Principles of Environmental Impact Assessment. See https://elaw.org/system/files/unep.EIA_.guidelines.and_.principles.pdf (accessed 13 March 2024).

73 1992 Protocol on Environmental Protection to the Antarctic Treaty, adopted October 4, 1991, entered into force January 14, 1998, 2941 UNTS 9.

74 See also Chie Sato, “The Necessity of a Global Legal Framework for Protection of Marine Biodiversity in Areas beyond National Jurisdiction: Could the BBNJ Agreement Provide the Basis for an Integrated Framework?” (2022) 25 Max Planck Yearbook of United Nations Law 584, 607–612.

75 Article 8(1) of the Protocol.

76 Kees Bastmeijer and Ricardo Roura, “Environmental Impact Assessment in Antarctica” in Kees Bastmeijer and Timo Koivurova (eds), Theory and practice of Transboundary Environmental Impact Assessment (Njihoff, 2007), 184.

77 Ibid.

78 Craik, note 15, 136–137. Further, see Donald R. Rothwell, “Polar Environmental Protection and International Law: The 1991 Antarctic Protocol” (2000) 11 European Journal of International Law 591, 600–602.

79 2023 BBNJ Agreement, Art 30(1)(b).

80 Ibid, Art 31(1)(a)(i).

81 Ibid, Art 31(1)(a)(ii).

82 Ibid, Art 31(1)(a)(iii).

83 Craik, note 15, 30–31.

84 Abaza, Bisset and Sadler, note 30, 47; Craik, note 15, 30.

85 It appears that the Espoo Convention and the Environmental Protocol do not treat scoping as a distinct stage of the EIA process. For the EIA process of the Environmental Protocol, see Bastmeijer and Roura, note 76, 183.

86 Some states opposed the reference to climate change in the definition of cumulative impacts. For example, the EU and its member states proposed that the definition of cumulative impacts made no reference to climate change and ocean acidification. Textual proposals submitted by delegations by 20 February 2020, for consideration at the fourth session of the Intergovernmental conference on an international legally binding instrument under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (the Conference), in response to the invitation by the President of the Conference in her Note of 18 November 2019 (A/CONF.232/2020/3) Article-by-article compilation, A/CONF.232/2022/INF.1, 15 April 2020, 9. The Republic of Korea proposed that the entire definition of cumulative impacts be deleted. Ibid, 15. See also Karen N. Scott, “The BBNJ Agreement: Strengthening the Oceans-Climate Nexus?” in James Kraska, Ronan Long and Myron H. Nordquist (eds), Peaceful Maritime Engagement in East Asia and the Pacific Region (Nijhoff, 2023), 421.

87 Scott, ibid, 416.

88 Doelle and Sander, note 54, 515.

89 Pulp Mills on the River Uruguay, note 40, [205].

90 2023 BBNJ Agreement, Art 36(2).

91 Doelle and Sander, note 54, 513.

92 2003 BBNJ Agreement, Art 31(a)(i) and (vi).

93 Ibid, Art 32(1).

94 Ibid, Art 33(3) and (5).

95 Ibid, Art 34(3).

96 Ibid, Art 36(2).

97 Ibid, Art 37(2), (4)(d), (5) and (6).

98 Viviane Meunier-Rubel, Interstitial Law-Making in Public International Law: A Study of Environmental Impact Assessment (Brill, 2023), 20–24.

99 See also Kentaro Nishimoto, “The Impact of the BBNJ Agreement on the Legal Framework for the Governance of the Central Arctic Ocean” (2021) 13 The Yearbook of Polar Law 275, 286–292; Yoshifumi Tanaka, “The Concept of Adjacent Coastal States in the BBNJ Agreement: An Essay in Hour of Ted L. McDorman” (2024) 55(4) Ocean Development and International Law (forthcoming).

100 2023 BBNJ Agreement, Art 49(2).

101 Such actors are representatives of states not party to this Agreement, relevant global, regional, subregional and sectoral bodies, Indigenous peoples and local communities with relevant traditional knowledge, the scientific community, civil society, and other relevant stakeholders with an interest in matters pertaining to the COP.

102 Yoshifumi Tanaka, “Compliance Procedure (Multilateral Environmental Agreements)” in Max Planck Encyclopaedia of International Procedural Law (MPEiPro) (online edition) (Oxford University Press, 2021), [6].

103 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, adopted 4 August 1995, entered into force 11 December 2001, 2167 UNTS 88 (Fish Stocks Agreement).

104 International Convention for the Prevention of Pollution from Ships, adopted 2 November 1973 as Modified by the Protocol of 1978 Relating Thereto, adopted 17 February 1978, entered into force 2 October 1983, 1340 UNTS 62 (MARPOL).

105 Treaty concerning the Archipelago of Spitsbergen, adopted 9 February1920, entered into force 14 August 1925, 2 League of Nations Treaty Series 7.

106 Agreement on the Conservation of Polar Bears, adopted 15 November 197, entered into force 26 May 1976, 2898 UNTS 243.

107 Convention for the Protection of the North-East Atlantic, adopted 22 September 1992, entered into force 25 March 1998, 2345 UNTS 67. The OSPAR Convention covers part of the marine Arctic, including the high seas.

108 Agreement on Cooperation on Marine Oil Pollution, Preparedness and Response in the Arctic, adopted 15 May 2013, entered into force 25 March 2016. The electronic text is available at: https://oaarchive.arctic-council.org/handle/11374/529 (accessed 13 March 2024).

109 Polar Code: International Code for Ships Operating in Polar Waters, Resolution MSC.385(94), adopted on 21 November 2014, and Resolution 264(68), adopted 15 May 2015. Entered into force January 1, 2017.

110 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, adopted 3 October 2018, entered into force 25 June 2021 (CAOF Agreement). The text is available at: www.mofa.go.jp/mofaj/files/000449233.pdf (accessed 13 March 2024).

111 CAOF Agreement, preamble.

112 Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic, preamble; OSPAR Convention, preamble.

113 Yoshifumi Tanaka, Rachael Lorna Johnstone and Vibe Ulfbeck, “Polar Legal System” in Tanaka, Johnstone and Ulfbeck, note 16, 17, 27. Probably the most serious challenge to the Arctic legal system has arisen from the implications of the Russia’s invasion of Ukraine. After Russia’s invasion of Ukraine, the Arctic Council ceased all official meetings of the Council. See https://twitter.com/arcticcouncil; Joint Statement on Arctic Council Cooperation Following Russia’s Invasion of Ukraine, 3 March 2022, at: https://www.state.gov/joint-statement-on-arctic-council-cooperation-following-russias-invasion-of-ukraine (accessed 13 March 2024). Although the chairmanship has been transferred from Russia to Norway, the fact remains that Russia’s invasion of Ukraine complicates cooperation with Russia through the Arctic Council and shatters the mutual trust between Russia and other Arctic states in the Arctic. Even so, treaties regulating activities in the marine Arctic remain legally in force. Accordingly, suspension of international cooperation with Russia does not directly lead to the collapse of the Arctic legal system as a whole. See Timo Koivurova and Akiho Shibata, “After Russia’s Invasion of Ukraine in 2022: Can We Still Cooperate with Russia in the Arctic?” (2023) 59 Polar Record 1, 7.

114 Timo Koivurova, Pirjo Kleemola-Juntunen and Stefan Kirchner, “Arctic Regional Agreements and Arrangements” in Scott and VanderZwagg, note 59, 64, 73–74.

115 For example, the Arctic Council issued “Guidelines for Implementing an Ecosystem Approach to Management of Arctic Marine Ecosystems” in 2019 at: https://oaarchive.arctic-council.org/handle/11374/2390 (accessed 13 March 2024). In May 2021, the Arctic Council issued “Regional Action Plan on Marine Litter in the Arctic” at: https://www.pame.is/projects-new/arctic-marine-pollution/marine-litter-highlights/428-regional-action-plan-on-marine-litter (accessed 13 March 2024)

116 See also Erik J. Molenaar, “Participation in the Central Arctic Ocean Fisheries Agreement” in Akiho Shibata, Leilei Zou, Nikolas Sellheim et al. (eds), Emerging Legal Orders in the Arctic: The Role of Non-Arctic Actors (Routledge, 2019), 132, 147.

117 Georges Scelle, “Le phénomène juridique du dédoublement Fonctionnel” in Walter Schätzel and Hans Jürgen Schlochauer (eds), Rechtsfragen der internationalen Organisation: Festschrift für Hans Wehberg zu seinem Geburtstag (Vittorio Klostermannm, 1956), 324. See also Yoshifumi Tanaka, “Reflections on Georges Scelle’s Theory of the Law of dédoublement fonctionnel in the Law of the Sea: Two Models for the Protection of Community Interests” (2023) 38 International Journal of Marine and Coastal Law 39, 52–53.

118 Georges Scelle, Manuel de Droit International Public (Domat-Montchrestien, 1948), 15; Georges Scelle, Précis de Droit des Gens: Principes et Systématique, Première Partie (Recueil Sirey, 1932), 18.

119 Scelle, (Précis), note 118, 20.

120 Scelle, (Précis), note 118, 331. See also Georges Scelle, “Règles Générales du Droit de la Paix,” (1933) 46 RCADI 327, 356.

121 Tanaka, note 117, 52.

122 Ibid, 53–58.

123 For analysis of treaties and instruments referring to an EIA in relation to the (marine) Arctic, see Koivurova, note 12, 192–240; Sander, note 43, 98–109; Johnstone, note 59, 136–163.

124 CAOF Agreement, Arts 1(a) and 2.

125 Ibid, Arts 1(e) and 3(3).

126 Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries (NEAFC Convention), adopted 18 November 1980, entered into force 17 March 1982, Art 4(2)(c). The text is available at: https://www.neafc.org/system/files/Text-of-NEAFC-Convention-04.pdf (accessed 13 March 2024).

127 NEAFC Convention, Art 7(1). See also Article 6. Recommendation 19 2014: Protection of VMEs in NEAFC Regulatory Areas as Amended by Recommendation 09:2015, at: https://faolex.fao.org/docs/pdf/mul165665.pdf (accessed 14 March 2024). See also Richard Barnes, “The Proposed LOSC Implementation Agreement on Areas Beyond National Jurisdiction and Its Impact on International Fisheries Law” (2016) 31 International Journal of Marine and Coastal Law 583, 613.

128 The map of NEAFC Regulatory Areas is available at: https://www.neafc.org/page/27 (accessed 13 March 2023). See also Sander, note 43, 106.

129 Polar Code, note 110, Part I-A, Chapter 1, [1.5.2]

130 Arctic Council, Arctic Offshore Oil and Gas Guidelines (2009), 13–19, at: https://oaarchive.arctic-council.org/handle/11374/63 (accessed 13 March 2024).

131 Arctic Environment Protection Strategy 1997: Guidelines for Environmental Impact Assessment (EIA) in the Arctic. Sustainable Development and Utilization. Finnish Ministry of the Environment, Finland, 38, at: https://oaarchive.arctic-council.org/handle/11374/2508 (accessed 13 March 2024). For an overview of the Guidelines, see Timo Koivurova, “Implementing Guidelines for Environmental Impact Assessment in the Arctic” in Bastmeijer and Koivurova (eds), note 76, 151, 154–164.

132 Päivi A. Karvinen and Seija Rantakallio (eds), Good Practices for Environmental Impact Assessment and Meaningful Engagement in the Arctic—Including Good Practice Recommendations, Arctic Council, Sustainable Development Working Group (SDWG), Arctic Environmental Impact Assessment (EIA) project (2019), 18, at: https://oaarchive.arctic-council.org/server/api/core/bitstreams/a5b2257f-6f8b-4251-a04c-50562c991fca/content (accessed 13 March 2024). The project was funded by the Ministry of Foreign Affairs of Finland.

133 Johnstone, note 59, 150. When the exploration and exploitation of mineral resources in the Area commence, an EIA in the Area will also be required by the International Seabed Authority. Recommendations for the guidance of contractors for the assessment of the possible environmental impacts arising from exploration for marine minerals in the Area, ISBA/25/LTC/6/Rev.2, 8 July 2022. See also Samantha Robb, Aline Jaeckel, and Catherine Blanchard, “How Could the BBNJ Agreement Affect the International Seabed Authority’s Mining Code?,” EJIL: Talk!, at: https://www.ejiltalk.org/how-could-the-bbnj-agreement-affect-the-international-seabed-authoritys-mining-code/(accessed 13 March 2024).

134 It must also be remembered that the United States has not ratified UNCLOS.

135 Convention on Biological Diversity, adopted 5 June 1992, entered into force 29 December 1993, 1760 UNTS 79. The United States has not ratified the Convention yet. For a list of the Contracting Parties to the Convention on Biological Diversity, see https://www.cbd.int/information/parties.shtml (accessed 14 March 2024).

136 Johnstone, note 59, 148; Oude Elferink, note 13, 463.

137 Costa Rica v. Nicaragua/Nicaragua v. Costa Rica, note 40, [164].

138 OSPAR Convention, Art 6; Annex IV.

139 Canada, the Kingdom of Denmark, Finland, Norway, and Sweden are parties to the Espoo Convention, but Iceland, Russia, and the United States have not ratified the Convention yet. See https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=XXVII-4&chapter=27&clang=_en (accessed 13 March 2024).

140 Robin Warner, “Principles of Environmental Protection at the Poles” in Scott and VanderZwaag, note 59, 326, 341.

141 Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context, adopted 21 May 2003, entered into force 11 July 2010, 2685 UNTS 140. Preamble, Arts 15, 2(3) and 2(4). While Denmark and Norway are contracting parties to the Protocol, Canada, Russia, and the United States have not ratified it. See https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-4-b&chapter=27&clang=_en (accessed 13 March 2024).

142 See also Nishimoto, note 99, 293–294.

143 For trans-polar passage, see Erik Franckx, “Navigational Rights and Freedoms in Polar Regions” in Tanaka, Johnstone and Ulfbeck, note 16, 103, 115–116; Mia M. Bennett, Scott R. Stephenson, Kang Yang et al., “The Opening of the Transpolar Sea Route: Logistical, Geopolitical, Environmental, and Socioeconomic Impacts” (2020) 121 Marine Policy 104178.

144 At the fifth session of the Intergovernmental Conference (IGC-5) in 2022, many delegates highlighted the importance of substantive and functional equivalency of EIAs conducted by international frameworks and bodies. (2022) 25 Earth Negotiations Bulletin, no. 240, 7.

145 See also Article 5(2) of the BBNJ Agreement.

146 2023 BBNJ Agreement, Art 29(6).

147 The preamble of the BBNJ Agreement expresses its desire to “act as stewards of the ocean.”

148 For the institutional application of the law of dédoublement fonctionnel, see Tanaka, note 117, 58–67.

149 Mary Durfee and Rachael Lorna Johnstone, Arctic Governance in a Changing World (Rowman & Littlefield Publishers, 2019), 9 and 53.

150 They are the Arctic Athabaskan Council, Aleut International Association, Gwich’in Council International, Inuit Circumpolar Council, Russian Association of Indigenous Peoples of the North, and Saami Council.

151 See also Johnstone, note 59, 158–160; Doelle and Sander, note 54, 513; Makoto Seta, “Incorporating Traditional Ecological Knowledge into Science under the Law of the Sea via the Arctic Ocean Governance” (2021) 13 The Yearbook of Polar Law 321.

152 Arctic Environment Protection Strategy 1997: Guidelines for Environmental Impact Assessment (EIA) in the Arctic. Sustainable Development and Utilization. Finnish Ministry of the Environment, Finland, 38, at: https://oaarchive.arctic-council.org/handle/11374/2508 (accessed 13 March 2024).

153 Karvinen and Rantakallio, note 132, 18.

154 See Articles 31(1)(a)(ii)(iv), 31(1)(b)(c), 32(3), 35, and 37(4)(a)(c) of the BBNJ Agreement.

155 Koivurova and Lesser, note 8, 10.

156 Craik, note 15, 36; Viviane Meunier-Rubel, note 98, 21.

157 See also Mana Tugend, “What Role for Traditional Knowledge in the Conservation of Marine Biodiversity in the Arctic High Seas?” The NICLOS Blog, 26 April 2021, at: https://site.uit.no/nclos/2021/04/26/what-role-for-traditional-knowledge-in-the-conservation-of-marine-biodiversity-in-the-arctic-high-seas (accessed 13 March 2024).

158 The 2019 Good Practice distinguished “Indigenous knowledge” from “local knowledge.” Referring to Arctic Indigenous peoples at the Second Arctic Science Ministerial Meeting, “Indigenous knowledge” is defined as “a body of knowledge generated through cultural practices, lived experiences including extensive and multigenerational observations, lessons and skills.” Karvinen and Rantakallio, note 132, 19; INUIT, Press Release: Arctic Indigenous Peoples at the Second Arctic Science Ministerial Meeting, 26 October 2018, at: ICC_PP-press-release_1026.pdf (iccalaska.org) (accessed 13 March 2024). On the other hand, “local knowledge” refers to “knowledge of all Arctic residents, who inhabit a specific geographical area. Local knowledge is adapted to the local culture and environment and is embedded in community practices and institutions.” Karvinen and Rantakallio, note 132, 19.

159 In the 2nd session of the Intergovernmental Conference, for instance, Canada and the United States took the view that traditional knowledge should be included as other source of information because it is different from scientific information. Earth Negotiations Bulletin, note 67, 9.

160 See also Seta, note 151, 333–335.