Transboundary Pollution in the New Legally Binding Instrument under the UN Convention on the Law of the Sea The case for anthropogenic underwater noise

The United Nations General Assembly has initiated a process to negotiate a new legally binding instrument to establish a framework for the conservation and sustainable use of biological diversity beyond national jurisdiction (BBNJ). These negotiations are taking place pursuant to the United Nations Convention on the Law of the Sea (the Convention or UNCLOS), which entered into force in 1994 as the overall legal charter for regulating and managing all activities in the ocean, with the exception of military associated operations. The Convention places the responsibility for environmental protection in the ocean upon the governments of State Parties acting individually and cooperatively through international organizations. This new BBNJ instrument will implement the mandates of the Convention in line with existing international law. Four elements make up the proposed provisions under discussion: environmental impact assessments (EIA) for activities with the potential to cause significant adverse impacts; area-based management tools (ABMT), including marine protected areas; marine genetic resources, including questions of the sharing of benefits; and capacity building and the transfer of marine technology. The elements for EIA and ABMT have the most pertinent application to the international management of transboundary pollution. Anthropogenic underwater noise pollution and other transboundary pollutants are significant and growing threats to the health of the components of BBNJ; the new instrument represents the most promising opportunity to manage these threats. This paper proposes legal mechanisms for the incorporation into the new instrument requirements for consideration of the adverse impacts of all transboundary pollution, with noise as a case study, focusing on the elements for environmental impact assessments and area-based management tools.