国家管辖范围外海域环境影响评价制度的构建逻辑

国际法确立了有关跨境环评的程序性义务,但由各国参照“国际软法”来执行实体性标准。《海洋法公约》有关国家管辖范围外海域（Areas Beyond National Jurisdiction,ABNJ）生物多样性保护和可持续利用新协定环评条款的制定仍应坚持这种基于程序主义的软法规制模式;在国际法框架下开展针对ABNJ的环评,应由国内法主导国际法规范的具体实施,且国家享有自主决策权。这种“国家主导、国家自主决策”的跨界主义方法,可扩展为国内法基于“影响导向”的域外适用;鉴于区域性海洋环评规则与全球性机制的互动关系,中国可积极推动ABNJ环评规则的渐进式发展,并逐步将环评嵌入周边区域性海洋谈判之中。

The Development Logic of Environmental Impact Assessment System for the Areas beyond National Jurisdiction

The procedural obligations of environmental impact assessment (EIA) have been established in international law, while the substantive standards are mainly implemented by states referring to international “soft law”. The formulation of the relevant provisions of the coming agreement on the biodiversity in the areas beyond the jurisdiction of states (ABNJ) under the UNCLOS should adhere to the ‘soft regulation mode’ based on the principle of proceduralism; And the EIA of ABNJ should be carried out under the guidance of domestic law and with reference to international norms, while the member states enjoy the independent decision-making power. This “transnationalism” approach, which states dominate the implementation and make decisions independently, can be embodied in the extraterritorial application of domestic law based on “impact oriented”; As the interaction between regional marine EIA rules and global mechanism will have a certain impact on the future ABNJ system, China could actively promote the new BBNJ agreement and gradually embed the EIA in regional maritime negotiations.