This chapter provides a brief overview of the international law relating to liability for environmental damage, and identifies, on a preliminary basis, potential issues arising in developing and applying liability rules in respect of environmental damage in areas beyond national jurisdiction (ABNJ). The chapter provides an overview of the current legal and institutional arrangements governing the ABNJ that are the focus of the book -- Antarctica, the deep seabed and the high seas – as well as highlighting some of the environmental risks posed to these areas by current and prospective activities.

Chapter 6 turns to the potential extraction of metals from areas beyond national jurisdiction: Antarctica, the deep seas and outer space. Each of these areas contains, with varying degrees of plausibility, large reserves of metals that are indispensable for a global transition towards sustainability, particularly in the energy and transportation sectors. At the same time, extractive operations would be virtually certain to generate various types of adverse environmental impacts while also raising challenging questions related to fairness and equity: in different ways, the legal regimes applicable to each of these three areas beyond national jurisdiction give effect to collective rights that are most clearly enshrined in the concept of the common heritage of humanity. The chapter assesses institutional responses to this technological field under three international institutions: the Antarctic Treaty System, the United Nations Convention on the Law of the Sea, and the Outer Space Treaty.

This Chapter analyses the legal challenges raised by the use of new technologies for marine environmental restoration purposes, using as a case study the Ocean Cleanup’s plastic cleanup activities in areas beyond national jurisdiction. While the objective of both proponents and opponents of such technological ‘solutions’ is ultimately the same – protection of the marine environment –the underlying conceptions of the ‘risks’ and ‘benefits’ involved seem to diverge. When seeking guidance from the rule of law on how to assess and balance these different perceptions of risk, challenges arise where uncertainty remains and the law in turn relies on extra-legal knowledge, such as scientific data, to give content to legal standards.

Marine bioprospecting is the examination of marine genetic material of plants, animals and microorganisms for features that may be of value for commercial purposes. These features may include chemical compounds, genes and their products, or, in some cases, the physical properties of the material in question. One of the principal attributes of bioprospection is the commercialization of the research or the intellectual property derived from the research on marine genetic resources (MGRs). This chapter explores the key challenges for an international treaty under UNCLOS governing access and use of MGRs in areas beyond national jurisdiction, including the deposit of material in biorepositories and mechanisms for sharing of knowledge from research on MGRs, such as a clearing house, and legal requirements for sharing data including gene sequence data and greater participation of researchers from developing countries. Reference is made to the International Treaty on Plant Genetic Resources and the 2010 Nagoya Protocol.