3 Applying the Framework: A Provision-by-Provision Analysis of the BBNJ EIA Obligation
Part 2 established that splashdown operations constitute “planned activities” within the scope of the BBNJ, that the Agreement’s “not undermine” clause does not displace the applicable EIA obligations, and that those obligations arise from both the BBNJ and the pre-existing framework of UNCLOS and customary international law. Part 3 conducts a provision-by-provision analysis of Articles 27–39 of the BBNJ as applied to splashdown operations. In its Preamble, the BBNJ calls on States Parties to act as “stewards of the ocean in areas beyond national jurisdiction on behalf of present and future generations by protecting, caring for and ensuring responsible use of the marine environment, maintaining the integrity of ocean ecosystems and conserving the inherent value of biological diversity of areas beyond national jurisdiction”.(1) BBNJ, Preamble. But, beyond recognizing the need for States to take “all measures necessary to ensure that pollution arising from incidents or activities does not spread”(2) Ibid. beyond sovereign territory, the Treaty exclusively addresses States obligations in areas outside of any national territory.
Outside the boundaries of national sovereignty, the BBNJ imposes a host of new obligations for States’ activities with respect to environmental impacts. While some of these mechanisms follow traditional assessment and reporting strategies to monitor environmental impact, the Treaty contains novel approaches such as Article 24 “Emergency Measures” mechanism, which offers a faster process to establish temporarily limited measures and minimize risks to the environment.(3) Ibid., arts.24(1)-(5). Article 24 provides a catch-all approach to any issues which can not be managed by other relevant legal instruments, frameworks, or governing bodies.