Lessons from the Protracted Mox Plant Dispute: A Proposed Protocal on Marine Environmental Impact Assessment to the United Nations Convention on the Law of the Sea
Maki Tanaka, Lessons from the Protracted Mox Plant Dispute: A Proposed Protocal on Marine Environmental Impact Assessment to the
United Nations Convention on the Law of the Sea
Lessons from the Protracted Mox Plant Dispute: A Proposed Protocal on Marine Environmental Impact Assessment to the United Nations Convention on the Law of the Sea
Maki Tanaka 0 1 2
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2 American University Washington College of Law , USA
J.D., summa cum laude, American University Washington College of Law; M.A.,
Political Science, University of Mississippi; B.A., Russian Studies, Tokyo University of
Foreign Studies. I would like to thank Marcos A. Orellana, Adjunct Professor at the American
University Washington College of Law and Senior Attorney at the Center for International
Environmental Law, Washington, D.C. for his helpful suggestions in the preparation of this
article. I also extend my gratitude to my friend, Mary Halley Burford, for her assistance in
editing and proofreading an earlier draft. Special gratitude is owed to Dr. Komei Hosokawa of
the Kyoto Seika University Department of Environmental & Social Research, who helped me
understand controversies surrounding the use of nuclear energy through his weekly workshops
held at the Tokyo University of Foreign Studies. All remaining errors are mine and the
opinions expressed herein are based on my own research.
On September 17, 2002, the Pacific Pintailsailed 18,000 miles back
from Japan to England with multiple oxide (MOX) fuel containing 225
kilograms (562 pounds) of plutonium.' British Nuclear Fuels plc (BNFL)
1. Protest Flotilla Ready as Shipload of Nuclear Fuel Noses Closer to Britain,
AGENCE FRANCE-PRESSE, Sept. 16, 2002, avai
WL 23601926 [hereinafter Protest
Flotilla Ready]. Greenpeace believes that this amount of plutonium is sufficient to produce
manufactured the MOX fuel at its MOX Demonstration Facility and
delivered it to a Japanese utility company in 1999.2 However, the Japanese
customer rejected the nuclear fuel because BNFL falsified quality
records.3 This incident further strained relations between Ireland and the
United Kingdom not only because the Pacific Pintail traversed the Irish
Sea with a considerable amount of plutonium, but also because BNFL
will eventually recycle the unwanted nuclear fuel at the Sellafield MOX
Plant, newly built on the Sellafield nuclear industrial site.'
The Sellafield site is located in northwest England on the coast of
the Irish Sea. At Sellafield, BNFL reclaims fissile plutonium and
uranium from spent nuclear fuel consigned by foreign utility companies,
and manufactures MOX fuel assemblies for the foreign customers from
50 nuclear bombs. Greenpeace, Countdown to a Deadly Shipment 2, at http://
archive.greenpeace.org/nuclear/bnfl/docs/general-pu-briefing.pdf (last visited Oct. 19, 2003).
But see Kozo Mizoguchi, Japan Defends Nuclear Fuel Decision, AP ONLINE, July 5, 2002,
lable at 2002
WL 23166113 (reporting that Japanese officials and an independent expert
argue that it is theoretically possible but practically difficult to make nuclear weapons from
2. Edward Power, BNFL HeadAdmits 'Stupidity' of MOX Episode, IRISH TIMES, Sept.
18, 2002, at 6, avai
lable at 2002
WL 25947530; Robert MacPherson, NuclearFuel Sails Back
to Britainfrom Japanwith Protestersin Tow, AGENCE FRANCE-PRESSE, Sept. 17, 2002,
lable at 2002
WL 23602411; SELLAFIELD: REPROCESSING PLANT IN GREAT BRITAIN 20
(Bellona Foundation, Working Paper No. 5, 2001), at http://www.bellona.no/pdfs/
(last visited Feb. 2, 2004)
3. Mizoguchi, supra note 1; Power, supra note 2, at 6; see also MacPherson, supra
note 2 (stating that BNFL agreed to take the fuel back as well as pay compensation and return
transport costs exceeding £100 million ($155 million)).
4. See Mizoguchi, supra note 1 (quoting the Irish Environment Minister Martin Cullen
that the MOX shipments through the Irish Sea are an unacceptable risk to the environment of
Ireland and the health and economic well-being of its population). Although Ireland
recognizes that in principle British vessels carrying nuclear fuel may navigate across the Irish Sea
exercising the right of innocent passage, it does not want the United Kingdom to turn the Irish
Sea into a "nuclear fuel highway'" Lorna Siggins, Greenpeace Unhappy with Stance on
NShip, IRISH TIMES, Aug. 30, 2002, at 4, avai
WL 25944754 (quoting Mr. Ahem,
the Irish Minister for Communications, Marine and Natural Resources).
5. BNFL plans to recover fissile materials from the returned fuel at a Sellafield
reprocessing--plant. See Protest Flotilla Ready, supra note 1. Eventually, BNFL will
manufacture new MOX fuel from the recovered plutonium and redeliver it to Japan, although
the Japanese are unwilling to take it back until BNFL implements safety measures
recommended by the British authority. See Memorial of Ir., MOX Plant (Itv.. U.K.), at 88, 90,
91 4.86,4.97 (Perm. Ct. Arb. 2002), at http://www.pca-cpa.org/PDF/Ireland%20Memorial%20
Part%201.pdf, http://www.pca-cpa.org/PDF/Ireland%20Memorial%2Part%2011.pdf, http:l
(last visited Apr. 9, 2004)
[hereinafter Annex VII Ir.'s Memorial];
Power, -supranote 2, at 6; Fuel Will Eventually Be Returned to Japan, IRISH TIMES, Sept. 18,
2002, at 6, avai
lable at 2002
WL 25947620. Ireland strongly criticizes the MOX return
shipments as inconsistent with the United Kingdom's assurance given at the International
Tribunal for the Law of the Sea (ITLOS). See Annex VII Ir.'s Memorial, supra, at 85-91,
the reclaimed fissile materials.' The Irish people are concerned about
routine radioactive discharges from BNFL's MOX related activities at
Sellafield and frequent transports of nuclear materials over the Irish Sea.
The conflict between the opposite sides of the Irish Sea materialized
in 1992, when BNFL decided to construct the Sellafield MOX Plant,
which is fifty times larger than the MOX Demonstration Facility in terms
of MOX production capacity.8 Alarmed by the likely intensification of
MOX related activities, Ireland urged the United Kingdom to prepare an
environmental impact assessment of the proposed nuclear fuel plant and
sought to obtain environmental and safety information on MOX
production at Sellafield and associated nuclear transports.9 After years of
unsuccessful diplomatic efforts to obtain relevant information, Ireland
resorted to arbitration under the United Nations Convention on the Law
of the Sea (UNCLOS)' ° and Convention for the Protection of the Marine
Environment of the North-East Atlantic (OSPAR Convention)," alleging
that the United Kingdom violated relevant treaty obligations to protect
the marine environment of the Irish Sea. Pending the constitution of the
tribunal under Annex VII of UNCLOS (Annex VII tribunal), Ireland
further requested the International Tribunal for the Law of the Sea (ITLOS)
to grant provisional measures that would prevent the plutonium
commissioning of the Sellafield MOX Plant. 2
On December 3, 2001, ITLOS issued the order that rejected the
provisional measures requested by Ireland. Instead, the Tribunal required
that the United Kingdom and Ireland cooperate in information exchange,
monitoring, and pollution prevention from the MOX plant. 3 Shortly
thereafter, BNFL commenced plutonium commissioning at the disputed
plant,' 4 while the OSPAR tribunal took more than a year and a half to
reach a decision on July 2, 2003." The Annex VII arbitral proceedings
are still pending at The Hague, with further provisional measures issued
on June 24, 2003.16
Although the ITLOS order attempted to facilitate dialogue between
the parties, the Tribunal was incapable of addressing the root cause of
the MOX plant controversy, namely the lack of an adequate mechanism
for transboundary environmental impact assessment at the onset of the
conflict under UNCLOS. Similarly, the OSPAR and Annex VII tribunals
have failed to bring about the efficient resolution of this procedural
environmental dispute. This Article addresses the prevention of similar
incidents by proposing the creation of a marine environmental impact
assessment protocol to UNCLOS to make assessment procedures
operational from the initial stage of controversial projects. Part II offers
background information, including the relationship between international
extend jurisdiction over the merits of the MOX Plant Case because pursuant to Article 287(5)
of UNCLOS, the dispute has been submitted to an ad hoc arbitral tribunal established under
Annex VII of UNCLOS. See ITLOS Provisional Measures, supra, at 2. Pending the
constitution of an Annex VII arbitral tribunal, however, ITLOS may prescribe provisional measures
upon request of either party, provided that ITLOS considers that the Annex VII tribunal to be
constituted would have primafacie jurisdiction and that the urgency of the situation requires
such measures. UNCLOS, supranote 10, art. 290(5), 21 I.L.M. at 1323.
It should also be noted that ITLOS and Annex VII tribunals do not have jurisdiction over
a dispute concerning interpretation or application of the OSPAR Convention because the
regional sea convention includes no provision authorizing dispute settlements before ITLOS or
ad hoc tribunals established pursuant to UNCLOS. See UNCLOS, supra note 10, art. 288(2),
21 I.L.M at 1323; see also OSPAR Convention, supra, note 11, art. 32, 32 I.L.M. at 1087.
Upon request by a Contracting Party, a dispute involving interpretation or application of the
OSPAR Convention may be submitted to an ad hoc arbitral tribunal upon request of a
Contracting Party pursuant to Article 32 of the OSPAR Convention. This is why two separate ad
hoc arbitral tribunals under UNCLOS and the OSPAR Convention have dealt with the MOX
Plant dispute between Ireland and the United Kingdom.
13. ITLOS Provisional Measures, supra note 12, at 416, 89.1 (a)-(c).
14. See Annex VII Ir.'s Memorial, supra note 5, at 81-82, 4.54-.57; Judith Perera,
Plutonium Commissioning Begins at MOX Fuel Plant,NUCLEAR WASTE NEWS, Jan. 3, 2002,
at 7, avai
lable at 2002
15. Dispute Concerning Access to Information Under Article 9 of the OSPAR
Convention (Ir. v. U.K.) (Penn. Ct. Arb. 2003), athttp://www.pca-cpa.org/PDF/OSPAR%2OAward.pdf
(last visited Nov. 12, 2003) [hereinafter OSPAR Final Award].
16. Order No. 3: Suspension of Proceedings on Jurisdiction and Merits, and Request
for Further Provisional Measures, MOX Plant (Ir. v. U.K.) (Perm. Ct. Arb. 2003), at http://
www.pca-cpa.org/PDF/MOX%200rder%20no3.pdf (last visited Nov. 11, 2003) [hereinafter
Annex VII Further Provisional Measures].
environmental law and the law of the sea, underlying competing interests
of states concerned, and marine environmental protection measures
under UNCLOS. 7 Part III analyzes factual and legal issues in the MOX
plant operation and associated nuclear shipments, with a particular focus
on procedural inadequacies in the environmental impact assessment
process. This Section also deals with the proliferation of tribunals in the
MOX plant dispute and identifies remaining problems under the vague
provisions of UNCLOS. Part IV conducts a comparative analysis of
major regional and international environmental assessment mechanisms,
and proposes a protocol for marine environmental impact assessment to
UNCLOS with an effective dispute settlement mechanism. The article
concludes by calling for the development of such an environmental
impact assessment protocol to UNCLOS.
A. InternationalEnvironmental Law and the Law of the Sea
The oceans are vital to the preservation of the global environment.
For example, the oceans provide important ecological services, including
sequestration of carbon, assimilation of wastes, and control of climate.'8
Marine environments also exhibit a considerable degree of biodiversity.'9
Nevertheless, environmental issues were generally marginalized in the
law of the sea until the end of World War II. This was primarily because
marine resources and assimilative capacities were regarded as
inexhaustible, and pollution problems were thought to be mostly confined
and localized. °
17. To focus on the tension between maritime states' rights of the freedom of
navigation and coastal states' rights and duties to protect the marine environment, this Article will
not address in detail environmental issues associated with the use of the continental shelf and
deep seabed. For more information, see R.R. CHURCHILL & A.V. LOWE, THE LAW OF THE
SEA 330 (3d ed. 1999).
18. DAVID HUNTER ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 676
(1998); see also A. Charlotte de Fontaubert et al., Biodiversity in the Seas: Implementing the
Convention on BiologicalDiversityin Marineand Coastal Habitats,10 GEO. INT'L ENVTL. L.
REV. 753, 761-62 (1998).
19. HUNTER ET AL., supra note 18, at 937 (stating that "much of the world's
biodiversity is found either in marine or freshwater ecosystems," although terrestrial biodiversity can
be easily studied and appreciated). Oceans and coasts represent impressive ecosystem
diversity and varying habitats, such as coral leafs with dense species concentrations and complex
interspecies interactions and deep ocean bottoms with unique species adapted to high pressure
and darkness. See de Fontaubert et al., supranote 18, at 760-61.
20. HUNTER ET AL., supra note 18, at 678; W.M. von Zharen,
EnvironmentalGovernance of the Seas, the CoastalZone, and Their Resources, 9 NAT. RESOURCES & ENV'T 3, 3
(1995); see also de Fontaubert et al., supra note 18, at 753-54 (stating that the ocean's
The law of the sea was initially developed to govern navigation,
which is, along with fishing, the oldest human use of the sea and still
vital to the conduct of international relations and international
commercial transactions.2' In the early seventeenth century, Hugo Grotius,
commonly regarded as the founder of modern international law22 and
also known to have taken part in the expansion of the Dutch East Indian
Company, elaborated on the principle of freedom of navigation as
follows: "Every nation is free to travel to every other nation, and to trade
with it. 24 Since then, this principle has been widely accepted by states as
a fundamental principle of customary international law.2 The high seas
acquired the status of a global commons, upon which flagged vessels of
every state could enjoy unimpeded basic rights of navigation and
Nevertheless, the freedom of navigation is by no means absolute.
Coastal states enjoy sovereignty over their respective territorial seas,
which were initially confined to a three-mile limit along the coast, but
were extended to twelve miles through commonly observed state
practices that emerged by the mid-twentieth century.27 The modern law of the
sea also recognizes coastal states' exclusive control over natural
resources within their respective 200-mile exclusive economic zones
(EEZs).2' As a result, the law of the sea intricately balances maritime
states' interest in navigation with coastal states' interest in territorial
control, as well as the artificial allocation of natural resources between the
two sides along maritime jurisdictional borders.
In addition, during the twentieth century, the principle of state
responsibility has evolved into customary international law. In the
context of the law of the sea, in 1949 the International Court of Justice
held in the Corfu Channelcase29 that each state bears an obligation not to
ness and relative inaccessibility to human investigation prevent people from appreciating its
inherent vulnerability and limits in marine resources).
21. CHURCHILL & LOWE, supra note 17, at 255.
22. Id. at 4; von Zharen, supra note 20, at 3.
23. See HUNTER ET AL., supra note 18, at 678 (explaining that Grotius advocated for
"the Netherlands' right to sail in the Indian Ocean and Eastern Seas in order to trade with
India and the East Indies" to protect Dutch interests against the political and commercial
dominion by Spanish and Portugal and to compete effectively with other mercantile nations).
24. von Zharen, supra note 20, at 3 (quoting H. GROTIus, THE FREEDOM OF THE SEAS 7
(Magoffin trans. 1916)).
25. See Lawrence Marin, Note, Oceanic Transportationof Radioactive Materials: The
Conflict Between the Law of the Seas'Rightof InnocentPassageand Duty to the
MarineEnvironment, 13 FLA. J. INT'L L. 361, 364 (2001); von Zharen, supranote 20, at 3.
26. See HUNTER ET AL., supra note 18, at 678.
27. CHURCHILL & LOWE, supra note 17, at 77-79.
28. See id. at 166-68.
29. Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4 (Judgment of Apr. 9)
Albania responsible for the explosion of mines within its territorial waters where British vessels,
knowingly permit its territory to be utilized for acts adverse to the rights
of other states. Similarly, Article 2 of the 1958 Convention on the High
Seas requires states to pay "reasonable regard to the interests of other
States in their exercise of freedom of the high seas."3 ° In the context of
environmental protection, in 1921 the arbitration tribunal in the Trail
Smelter case 3' found Canada liable for U.S. citizens' injuries from
transboundary air pollution caused by sulfur dioxide exhaustion from a
privately owned smelter within Canadian territory. This is because "no
State has the right to use or permit the use of its territory in such a
manner as to cause injury by fumes in or to the territory of another."32
The principle was further crystallized into Principle 21 of the 1972
Stockholm Declaration on the Human Environment, which requires
states to "ensure that activities within their jurisdiction or control do not
cause damage to the environment of other States or of areas beyond the
limits of national jurisdiction. 33 These two threads of state responsibility
during innocent passage through the North Corfu Strait, struck the mines and suffered severe
; see also von Zharen, supranote 20, at 4.
30. Convention on the High Seas, Apr. 29, 1958, 13 U.S.T. 2312, 450 U.N.T.S. 11, 84
[hereinafter Geneva Convention of 1958]; see also CHURCHILL & LOWE, supra note 17, at
Declaration];see also Rio Declarationon Environment and Development, U.N. GAOR, 47th
Sess., Annex 1, Agenda Item 21, at 8, princ. 2, U.N. Doc. A/CONFI51/26 (Vol. I) (1992)
[hereinafter Rio Declaration] (reaffirming an identical principle); Legality of the Threat or
Use of Nuclear Weapons, 1996 I.C.J. 15, 15, 29 (July 8) ("The existence of the general
obligation of States to ensure that activities within their jurisdiction and control respect the
environment of other States or of areas beyond national control is now a part of the corpus of
international law relating to the environment."); HUNTER ET AL., supranote 18, at 348 ("Most
commentators assumed that Principle 21 reflected customary international law as supported
by Trail Smelter and Corfu Channel."); Alan E. Boyle, Nuclear Energy and International
Law: An EnvironmentalPerspective, 1989 BRIT. Y.B. INT'L L. 257, 271-72 & n.103
[hereinafter Nuclear Energy] (stating that at the Stockholm Conference, many states recognized that
environmental state responsibility codified in Principle 21 embodied existing international
law). But see Daniel Bodansky, Customary (and Not So Customary) InternationalLaw, 3 IND.
J. GLOBAL LEGAL STUD. 105, 114-16 (1995) (asserting that core international environmental
norms including environmental state responsibility, which many commentators regard as
"customary," are rather "declaratory" without corresponding state practice); Developments in the
Law-InternationalEnvironmentalLaw, 104 HARV. L REV. 1484, 1515 n.7 (1991) [hereinafter
Developments in the Law] (arguing that environmental state responsibility is not grounded in
common interests among states); John Knox, The Myth and Reality of
TransboundaryEnvironmentalImpactAssessment, 96 AM. J. INT'L L. 291, 319 (2002) (contending that contrary to
the dominant view, the state responsibility not to cause transboundary harm does not
constitute customary international law but instead belongs to a "myth system" of international
environmental law consisting of "collective ideal"). The dissenting view is based primarily on
the fact that international environmental law and underlying state practice apparently tolerate
insignificant transboundary environmental damages. See Bodansky, supra, at 115;
Developments in the Law, supra, at 1515; Knox, supra, at 298. The majority view recognizes that the
principles have merged into "a general rule of customary international
law that States must not permit their nationals to discharge into the sea
matter that could cause harm to the nationals of other States. 34
However, this customary rule of state responsibility has limitations,
as it does not provide the means to impose collective responsibilities on
states to protect the marine environment. 3 Although individual states are
responsible for controlling environmental pollution within their
respective territorial seas, the vast oceans remain as collective goods. By the
end of 1973, nearly two thirds of the oceans were still insulated from
coastal states' national jurisdiction.36 Moreover, since the end of World
War II, industrialization and population growth have caused growing
amounts of marine pollutants to be discharged from a variety of sources,
including land-based activities and vessels. This has overwhelmed the
assimilative capacity of marine ecosystems, in particular in closed and
semi-closed seas.37 In an attempt to avoid a "tragedy of commons,""
states have cooperated in establishing international and regional
institutions that supply detailed safety and environmental standards.39
duty to prevent transboundary environmental harm is not absolute and regard that
environmental state responsibility entails due diligence to take all practicable steps to prevent
transboundary environmental harm. See, e.g., Report of the InternationalLaw Commission on
the Work of Its Fifty-Third Session, U.N. GAOR, 56th Sess., Supp. No. 10, at 391-96, U.N.
Doc. A/56/10 (2001) [hereinafter ILC Commentaries];HUNTER ET AL., supranote 18, at 349;
Phoebe N. Okowa, ProceduralObligationsin InternationalEnvironmentalAgreements, 1996
BRIT. Y.B. INT'L L. 275, 280; see also Alan E. Boyle, State Responsibility and International
Liabilityfor Injurious Consequences of Acts Not Prohibitedby InternationalLaw: A Neces
sary Distinction?, 39 INT'L & COMP. L.Q. 1, 15 (1990) [hereinafter State Responsibility]
(supporting the view that due diligence reflects actual state practice).
34. CHURCHILL & LOWE, supra note 17, at 332; see von Zharen, supra note 20, at 4;
see also Alan E. Boyle, Marine Pollution Under the Law of the Sea Convention, 79 AM. J.
INT'L. L. 347, 349 (1985) (stating that under customary international law, only the principle of
state responsibility provides affected coastal states with some general protection from
transboundary pollution and the rights of redress against the originating state without wide
recognition of coastal states' prescriptive jurisdiction beyond the territorial sea); Jon M. Van
Dyke, Sea Shipment of Japanese Plutonium, 24 OCEAN DEV. & INT'L L. 399, 400 (1993)
(referencing the duty to avoid causing injury to others and the duty to prevent transboundary
environmental pollution as basic norms of international law from which the general duty to
protect the marine environment derives).
35. HUNTER ET AL., supranote 18, at 679.
36. Id. at 680.
37. See CHURCHILL & LOWE, supra note 17, at 331; see also de Fontaubert, supra note
18, at 763 (stating that land-based sources are the primary cause of marine pollution, although
airborne and vessel sources also have significant impacts on the marine ecosystems).
38. "The tragedy of the commons" involves public goods, including clean water and air,
to which everyone has free access without private mechanisms to control use, such as
ownership through property rights and allocation of costs through markets. HUNTER ET AL., supra
note 18, at 105-06.
39. See CHURCHILL & LOWE, supra note 17, at 333 (stating that all the treaties dealing
with pollution from ships were adopted under the auspices of the International Maritime
Organization (IMO)); Kristina Martin, Note, Conflicts in MarineEnvironmental Protection:The
In addition, precautionary and anticipatory approaches have become
necessary to ensure that states carry out their responsibility not to cause
transboundary environmental harm. In particular, marine environmental
protection requires precaution and prevention, as solutions to marine
environmental degradation are often complex due to the direct and cumulative
impacts of different substances discharged from multiple mobile and
stationed sources.4° Thus, it is necessary to incorporate contemporary
international environmental norms, such as the precautionary principle and
states' duty to conduct environmental impact assessment, into regional and
international regimes of marine environmental protection.
In 1982, UNCLOS introduced an international framework for marine
environmental protection to facilitate these legal developments.4 '2 The
UNCLOS framework builds on the principle of state responsibility,4 and
Turkish Straits as a Case Study, 9 TRANSNAT'L L. & CONTEMP. PROBS. 681 (1999) (detailing
the history of the IMO and its initiatives in marine safety and environmental protection). For a
comprehensive list of the relevant IMO conventions, see IMO, Marine Environment
Conventions, at http://www.imo.org/Conventions (last visited Aug. 1, 2003).
At the regional level, all the sources of marine pollution are addressed within a single
framework convention accompanied by protocols detailing parties' obligations concerning
specific sources of pollution. See CHURCHILL & LOWE, supra note 17, at 333-34. The United
Nations Environmental Programme ("UNEP") has supported regional efforts to curve marine
pollution through its Regional Seas Programme. See id. at 334. For a comprehensive list of
regional agreements, see UNEP, Regional Seas Conventions and Protocols, at http://
www.unep.ch/seas/main/hconlist.html (last visited Nov. 11, 2003).
40. Agenda 21, U.N. GAOR, 47th Sess., Annex 2, 9M 17.18-.21, U.N. Doc. AICONF.151/4
41. Id 1 17.21; see also ILC Commentaries, supra note 33, at 404 (stating that the duty to
assess potential environmental impact corresponds to the principle of state responsibility);
CHURCHILL & LowE,supra note 17, at 336 (explaining the incorporation of the precautionary principle,
as well as the concept of sustainable development and biodiversity, in regional seas agreements in
the 1990s); Jon M. Van Dyke, Applying the PrecautionaryPrincipleto Ocean Shipments of
Radioactive Materials,27 OCEAN DEV.& INT'L L. 379, 379 (1996) (maintaining that the precautionary
principle has acquired "almost universal acceptance" as a fundamental nile concerning activities
affecting the marine environment). See generally Rio Declaration,supra note 33, at 11, princ. 15
(codifying the precautionary principle that prevents states from using scientific uncertainty as a
justification to postpone cost-effective measures to prevent potentially significant environmental
harm); infra note 84 and accompanying text (explaining in detail states' duties to conduct
environmental impact assessments).
42. See Boyle, supra note 34, at 350 ("[P]art XII of the Convention represent[s] the first
attempt to set out a general framework for a legal regime that establishes on a global, conventional
basis the obligations, responsibilities and powers of states in all matters of marine environmental
43. See UNCLOS, supranote 10, art. 194(2), 21 I.L.M. at 1308.
States shall take all measures necessary to ensure that activities under their jurisdiction or
control are so conducted as not to cause damage by pollution to other States and their
environment, and that pollution arising from incidents or activities under their
jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in
accordance with this Convention.
draws on emerging preventive and anticipatory environmental norms,"
while relying on international instruments to supplement detailed
environmental and safety standards.45
B. Competing Interests of States Concerned in
The evolution of the law of the sea also reflects the conflict between
the interests of maritime states and coastal states. Maritime states have
interests in the freedom of navigation and wish to insulate their flagged
vessels from the control of coastal states. In contrast, coastal states want
to exercise as much control as possible over flagged vessels of other
states to manage fisheries, as well as to maintain peace, security, and
public order within their respective territories."
44. See UNCLOS, supra note 10, art. 23, 21 I.L.M. at 1274 (requiring vessels loaded with
nuclear materials and other ultrahazardous substances to comply with "special precautionary
measures" established by international agreements); id art. 206, 21 I.L.M. at 1309 (providing for states'
duty to assess environmental impacts); see also id.art. 119(l)(a), 21 I.L.M. at 1291 (introducing the
concept of sustainability in fish stocks management).
45. See id art. 197, 21 I.L.M. at 1308 ("States shall co-operate on a global basis and, as
appropriate, on a regional basis, directly or through competent international organizations, in
formulating and elaborating international rules, standards and recommended practices and procedures
consistent with this Convention, for the protection and preservation of the marine environment
.")i;d.. art. 201, 21 I.L.M. at 1309 ("States shall co-operate, directly or through competent
international organizations, in establishing appropriate scientific criteria for the formulation
and elaboration of rules, standards and recommended practices and procedures for the
prevention, reduction and control of pollution of the marine environment."); id. art. 207(4), 21 I.L.M.
at 1310 ("States, acting especially through competent international organizations or diplomatic
conference, shall endeavour to establish global and regional rules, standards and
recommended practices and procedures to prevent, reduce and control pollution of the marine
environment from land-based sources..."); see also infra notes 65, 70, 76, 78 and
accompanying text (explaining that UNCLOS uses international standards in defining states' rights to
prescribe measures to protect the marine environment).
46. See HUNTER ET AL., supra note 18, at 679-80; see also Mali v. Keeper of the
Common Jail ("Wildenhus's Case"), 120 U.S. 1 (1887) (holding that "if crimes are committed on
board of a character to disturb the peace and tranquility of the country to which the vessel has
been brought," the offenders may be subject to the jurisdiction of the local laws, in sustaining
U.S. enforcement jurisdiction over a Belgian national on the Belgian vessel). The Permanent
Court of International Justice recognized this preposition in dealing with enforcement
jurisdiction regarding collision between French and Turkish vessels on the high seas. S.S. Lotus (Fr. v.
Turk.), 1927 P.C.I.J. (Ser. A) No. 9. General principles articulated in the S.S. Lotus case are
still valid under international law, although Article 11.1 of the Geneva Convention of 1958,
supra note 30, at 88, effectively overruled the Court's specific holding that authorized the
injured state's enforcement jurisdiction over a responsible officer of the culpable foreign
vessel in a collision case. See HENRY J. STEINER ET AL., TRANSNATIONAL LEGAL PROBLEMS:
MATERIALS AND TEXT 858 (4th ed. 1994).
Enforcement jurisdiction, which is the authority to actually enforce laws, is distinct from
prescriptive jurisdiction, which refers to the authority to prescribe law. See CHURCHILL &
LOWE, supra note 17, at 11-12. Prescriptive jurisdiction does not always coexist with
enforcement jurisdiction and, in some circumstances, coastal states may not directly enforce
validly prescribed and applicable local laws against foreign vessels within the territorial sea.
This fundamental conflict of interest in the law of the sea is further
replicated in measures to protect the marine environment. Coastal states
may have legitimate interests in applying their own environmental and
safety standards to protect their unique local marine ecosystems and
environmentally sensitive areas, such as habitats of endangered species,
spawning sites of fish stocks, and coral reefs. Although states have
concluded numerous international agreements to prevent marine
environmental pollution,47 generalized international standards alone may
not adequately take into account geographical differences and ecological
vulnerabilities in local marine environments.
On the other hand, maritime states want to avoid imposition of
domestic environmental measures by coastal states, as this may create
inconsistencies in applicable environmental regulations across
navigation routes.4 '8 A coastal state enjoys territorial sovereignty and holds the
right to prescribe environmental regulations pursuant to its own
economic policy goals and natural resources management plan.49 In
accordance with its own risk preferences, a coastal state may choose to
implement domestic environmental standards tougher than those
prescribed in applicable multilateral environmental agreements." If such
inconsistencies were tolerated across territorial seas, it could hinder
See id. at 12; Boyle, supra note 34, at 362-63. In discussing measures to prevent marine
pollution, this Article focuses on prescriptive jurisdiction unless otherwise noted.
47. The International Convention for the Prevention of Pollution of the Sea by Oil, May
12, 1954, 12 U.S.T. 2989, 327 U.N.T.S. 3, was adopted as the first international pollution
control standards. See CHURCHILL & LOWE, supranote 17, at 339. Subsequently, international
efforts to reduce marine pollution was expanded through the International Convention for the
Prevention of Pollution from Ships, Nov. 2, 1973, 1340 U.N.T.S. 61, which sets detailed
standards concerning oil (Annex I, mandatory), noxious liquid substances in bulk (Annex 1H,
mandatory), harmful substances carried by sea in packaged forms (Annex III, optional),
sewage (Annex IV, optional), garbage (Annex V, optional), and air pollution (Annex VI, optional
and added in 1997). See CHURCHILL & LOWE, supranote 17, at 339-40.
In addition, safety measures concerning the marine transport of dangerous goods are
codified in several international instruments. See, e.g., 1 INTERNATIONAL MARITIME
ORGANIZATION, INTERNATIONAL MARITIME DANGEROUS GOODS (IMDG) CODE pmb
available at http://www.imo.org/Safety/index.asp?topic-id=158 (last visited Aug. 1, 2003)
(including Amendment 31-02 of May 2002, which makes the IMDG Code mandatory except
for certain recommendatory provisions); International Convention for the Safety of Life at
Sea, Nov. 1, 1974,32 U.S.T. 47, 1184 U.N.T.S. 278 (amended May 2002) [hereinafter SOLAS
Convention] (incorporating the IMDG Code as mandatory). In addition, international
agreements concerning accidental release of marine pollutants, dumping, and liability regimes for
pollution damage supplement UNCLOS. See CHURCHILL & LOWE, supranote 17, at 353-69.
48. See CHURCHILL & LOWE, supra note 17, at 346; Boyle, supranote 34, at 358.
49. This environmental state sovereignty is codified in Principle 21 of the Stockholm
Declaration, along with environmental state responsibility. Stockholm Declaration,supra note
33, princ. 21; see also Rio Declaration,supranote 33, at 8, princ. 2.
50. See Boyle, supra note 34, at 352 (stating that before UNCLOS entered into force,
international standards concerning marine pollution were merely permissible and states had
considerable discretion to determine whether and how to control pollution).
freedom of navigation and impose substantial compliance costs on the
In addition, a coastal state and its neighboring states may disagree
over measures to curtail land-based pollution. Although a coastal state
may unilaterally impose tough emissions standards on activities within
its territory, unilateral measures do not address land-based pollution
from neighboring states.-' As a result, the coastal state's unilateral
measure may ineffectively protect the shared marine environment, while its
industries incur substantial compliance costs from stricter measures. To
avoid the race to the bottom, neighboring coastal states may want to
harmonize emissions standards and take collective action to curtail
pollution from land-based sources.
Thus, in marine environmental protection there is tension between
maritime states' interest in the freedom of navigation and preference for
international standards, and coastal states' interest in maritime safety and
local environments and preference for domestic standards. In addition, to
address marine pollution from land-based sources, neighboring coastal
states have an interest in cooperating and coordinating with one another,
while rejecting interferences with territorial sovereignty.
C. Marine EnvironmentalProtectionMeasures
To address these competing interests of concerned states, UNCLOS
adjusted customary jurisdictional arrangements and the associated rights
and obligations of states regarding marine environmental protection
measures." In particular, states' rights and obligations are elaborated in
Part XII of the Convention. Thus, under UNCLOS, "[a]ll parts of the
Convention must be viewed as equally important and the duty to protect
and preserve the marine environment is just as much an international
norm as the rights to innocent and transit passage."53
51. See CHURCHILL & LOWE, supra note 17, at 379; see also Boyle, supra note 34, at
352 (explaining that because the law of the sea before the adoption of UNCLOS failed to
cover marine pollution from land-based sources, preventing pollution from land-based sources
depended on unilateral measures of states concerned).
52. See Boyle, supranote 34, at 352-53.
53. NCI,supra note 6 (quoting a statement made by Professor Jon M. Van Dyke of
William S. Richardson School of Law, University of Hawaii at Manoa); see also Main, supra
note 25, at 368 (stating that although the right of innocent passage is a primary concept in
UNCLOS, the Convention addresses the duty to protect the marine environment in much
1. Substantive Environmental Measures for
Marine Pollution Prevention
Under Article II of UNCLOS, coastal states enjoy sovereignty over
the territorial sea,54 which is subject to the right of innocent passage by
flagged vessels of another state.55 Importantly, such passage must be "not
prejudicial to the peace, good order or security of the coastal State. 5 6 In
the context of marine environmental protection, passage of a foreign ship
conducting "any act of willful and serious pollution" is not innocent.57 To
prevent such passage, coastal states "may take the necessary steps"
including expulsion of non-innocent vessels from the territorial sea.
Without serious harm, however, a coastal state may not deprive the right
of innocent passage from a vessel merely carrying ultrahazardous
substances, such as nuclear materials and highly toxic chemicals.5 9 The
coastal state may confine its passage to designated sea-lanes, 60 while the
vessel loaded with such substances must carry documents and comply
with "special precautionary measures" in applicable international
instruments.6' In addition, coastal states may not hinder innocent passage
with impracticable requirements and discriminatory measures.62
In conformity with these general rights and obligations, a coastal
state may prescribe laws and regulations using its preferred standards to
preserve the marine environment and curtail pollution from foreign
vessels within the territorial sea.63 The foreign vessels must comply with
properly prescribed laws and regulations of the coastal state during
innocent passagei" Nevertheless, coastal states may not apply domestic
regulations to affect the design, construction, manning, or equipment of
foreign vessels "unless they are giving effect to generally accepted
international rules or standards."65 UNCLOS introduced this significant
exception to take into account maritime states' interests in navigation
while creating an incentive for them to adopt international safety
standards established by the International Maritime Organization (IMO).66
Within the EEZ, a coastal state has a sovereign right to explore and
manage natural resources. 67 A healthy marine environment is necessary
to manage living natural resources on a sustainable basis. Nevertheless,
coastal states do not maintain full sovereignty within their respective
EEZs. Foreign vessels enjoy the freedom of navigation within the EEZ
of another state. 6 This arrangement creates tension between coastal
states and maritime states in exercising their rights and performing their
duties under UNCLOS. Part XII of the Convention purports to strike a
balance between the two sides.6 9 Under Article 211.5, coastal states may
prescribe rules to prevent pollution from vessels "conforming to and
giving effect to generally accepted international rules and standards., 70 This
formulation gives coastal states no discretion in adopting their own
standards, which must be neither higher nor lower than applicable
international standards.7' Nevertheless, a coastal state may apply "special
mandatory measures" to foreign vessels within an environmentally
sensitive area, provided that the coastal state obtains necessary authorizations
from the IMO acting as "the competent international organization. ' ' n
64. UNCLOS, supra note 10, art. 21(4), 21 I.L.M. at 1274.
65. Id. art. 21(2), 21 I.L.M. at 1274.
66. See CHURCHILL & LowE, supra note 17, at 94-95 (explaining that this provision
puts limitation on the legislative competence of coastal states to avoid differing standards in
design, construction, manning and equipment to which vessels cannot adjust during a voyage);
Boyle, supra note 34, at 360-61 (stating that the "international standards" provisions in
UNCLOS, in effect, limit the freedom of states to decline to ratify or apply relevant
international agreements). As a result, while maritime states may be compelled to apply international
standards that they have never ratified, they may exert influence over the development of
international safety standards through the IMO. Id. at 362.
67. UNCLOS, supra note 10, art. 56(1)(a), 21 I.L.M. at 1279.
68. Id. art. 58(l)(a), 21 I.L.M. at 1279.
69. See Boyle, supranote 34, at 358.
70. UNCLOS, supra note 10, art. 211(5), 21 I.L.M. at 1311. When states adopted this
formulation in 1982, they seemed to have in mind the MARPOR Convention adopted in 1973
under the auspices of the IMO. See Boyle, supra note 34, at 361.
71. See Boyle, supra note 34, at 361.
72. UNCLOS, supra note 10, art. 211(6)(a), 21 I.L.M. at 1311. Within the designated
area, the coastal state may apply IMO standards specifically established for that area and,
additionally, its own domestic laws and regulations concerning discharges or navigation. Id.
art. 211(6)(a), (c).
While coastal states obtain these quite novel jurisdictional bases for
pollution prevention within EEZs,73 their legislative competence in this
matter is narrowly tailored to minimize effects on maritime states'
freedom of navigation.
On the high seas, flagged vessels are subject to exclusive control of
the flag states in exercising their right to the freedom of navigation.74
Accordingly, marine environmental protection on the high seas depends on
flag states' domestic measures. Part XII imposes individual and
collective obligations on states to take measures to protect the marine
environment from pollution." In particular, domestic pollution
prevention measures "shall at least have the same effect as that of generally
accepted international rules and standards established through the
competent international organization or general diplomatic conference. 76
Unlike coastal states' laws and regulations, flag states' pollution
prevention measures are consistently applied to flagged vessels throughout a
voyage.7'Thus, to prevent pollution from flagged vessels, flag states are
encouraged to adopt stricter rules.
Regarding land-based sources, UNCLOS requires states to adopt
pollution prevention measures "taking into account internationally
agreed rules, standards and recommended practices and procedures.7 8
According to this provision, such domestic standards can be lower than
international standards. 79 Because this matter squarely falls within the
territorial sovereignty of each state, the language is quite lenient
compared with the other provisions discussed above. To fill the gap,
UNCLOS requires that states endeavor to harmonize their pollution
prevention measures at the regional level, ° and encourages regional and
73. See CHURCHILL & LOWE, supra note 17, at 169 (explaining that coastal states'
prescriptive jurisdiction over marine environmental protection within EEZs was not generally
recognized prior to UNCLOS).
74. UNCLOS, supra note 10, art. 87, 21 I.L.M. at 1286 (the freedoms of the high seas);
id. art. 92(1), 21 I.L.M. at 1287 (flag states' exclusive jurisdiction).
75. Id. art. 194(1), 21 I.L.M. at 1308 ("States shall take, individually or jointly as
appropriate, all measures consistent with this Convention that are necessary to prevent, reduce
and control pollution of the marine environment from any source. ); id. art. 194(2), 21
I.L.M. at 1308 (providing for states' duty to prevent transboundary marine environmental
pollution resulting from activities under their jurisdiction or control); id. art. 195, 21 I.L.M. at
1308 (spelling out states' duty not to transfer damage or hazards or transform one type of
pollution into another).
76. Id. art. 211.2.
77. See Boyle, supra note 34, at 358 (arguing that the prescriptive jurisdiction of
coastal states in marine environmental protection plays a secondary role to supplement the
primary duty of flag states to regulate pollutants from their own vessels).
78. UNCLOS, supra note 10, art. 207(1), 21 I.L.M. at 1310.
79. See Boyle, supra note 34, at 354-55.
80. UNCLOS, supra note 10, art. 207(3), 21 I.L.M. at 1310 (regional harmonization);
id. art. 207(4), 21 I.L.M. at 1310 (global and regional rules).
global cooperation in marine environmental protection.8 ' Indeed, these
provisions gave rise to regional regimes, including the OSPAR
Convention 2 and other similar regional seas conventions."
2. Environmental Assessment as a Procedural Requirement
for Marine Environmental Protection
Thus far, this Article has examined the command-and-control aspect
of marine environmental pollution measures under UNCLOS. In
addition, the Convention introduces measures to facilitate marine
environmental protection including, inter alia, assessment of potential
environmental impacts. An environmental impact assessment is a process
to examine, analyze, and evaluate planned activities in order to attain
sustainable development through environmentally informed
decisionmaking.H As contemporary environmental law shifts emphasis from
command-and-control measures to more holistic and preventive
approaches, a state's duty to conduct environmental impact assessment has
emerged as a fundamental principle of international environmental law8.5
81. Id. art. 197, 21 I.L.M. at 1308 (dealing with global and regional cooperation for
marine environmental protection); id. art. 200, 21 I.L.M. at 1309 (providing for facilitation of
studies, research programs, and exchange of information and data for marine environmental
protection); id. art. 201, 21 I.L.M. at 1309 (encouraging the development of scientific criteria
benefits and risks in projects, policies, and programs to support more integrated
decisionmaking). Many commentaries regard the duty of states to conduct environmental impact
assessments as an emerging norm of customary international law. HUNTER ET AL., supra note
18, at 367; see also Erika L. Preiss, Student Article, The InternationalObligationto Conduct
an Environmental Impact Assessment: The ICJ Case Concerning the Gabcikovo-Nagymaros
Project, 7 N.YU. ENVTL. L.J. 307, 308 & n.6 (1999); Gray, supra, at 127 (arguing that a
state's duty to conduct an environmental impact assessment "is arguably a customary principle
of international law at least where the environmental impact is expected to be grave");
Nicholas A. Robinson, InternationalTrends in Environmental Impact Assessment, 19 B.C. ENVTL.
Since 1969, when the United States initially instituted environmental
impact assessment through the National Environmental Policy Act
(NEPA),86 more than a hundred countries have introduced similar
domestic procedures87 and numerous international legal instruments have
incorporated environmental impact assessment provisions." Principle 17
of the Rio Declarationon Environment and Development of 1992
codifies this basic duty as follows:
Environmental impact assessment, as a national instrument, shall
be undertaken for proposed activities that are likely to have a
significant adverse impact on the environment and are subject to
a decision of a competent national authority. 9
Agenda 21, an action plan for the Rio Declaration, urges states to apply
environmental impact assessment in order to protect the marine
A proposed activity may have domestic environmental impacts as
well as transboundary environmental impacts, which may extend beyond
the jurisdiction or control of the originating state. In the domestic
conAFF. L. REV. 591, 602 (1992) ("It is becoming a norm of customary international law that
nations should engage in effective EIA [environmental impact assessment] before taking
action that could adversely affect either shared natural resources, another country's environment,
or the Earth's commons."). But see Okowa, supra note 33, at 279, 317, 335-36 (providing a
cautious assessment that the duty to conduct transboundary environmental impact assessment
has not yet attained the status of customary international law, although this duty has been
affirmed in a number of international legal instruments).
86. 42 U.S.C. §§ 4321-4370d (2000).
87. See Knox, supra note 33, at 296-97; Gray, supra note 85, at 89.
88. See, e.g., United Nations Convention on the Law of the Non-Navigational Uses of
International Watercourses, openedfor signature May 21, 1997, art. 12, 36 I.L.M. 700, 707
(1997) (providing for timely notification and information exchange including the results of
relevant environmental impact assessments); 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, openedfor signature Dec. 4, 1995, arts. 5(c), 6(1), 6(3), U.N. Doc. A/CONF.164/37
(1995), reprintedin 34 I.L.M. 1542, 1550-51 (1995) (requiring that coastal states and
maritime states cooperate in assessing impacts of fishing, other activities, and environmental
factors on target stocks and related species); United Nations Convention on Biological
Diversity, June 5, 1992, art. 14, 1760 U.N.T.S. 79, 151, 31 I.L.M. 818, 827 (1992) (including
environmental impact assessment procedures with notification, information exchange, and
consultation processes); United Nations Convention on the Protection and Use of
Transboundary Watercourses and International Lakes, Mar. 17, 1992, art. 3, 31 I.L.M. 1312, 1316-17
(1992) (requiring states to introduce legal, administrative, economic, financial, and technical
frameworks to implement environmental impact assessment); see also discussion infra Part IV
(examining in detail major international environmental impact assessment instruments). For a
comprehensive list of earlier international instruments dealing with environmental impact
assessments, see Robinson, supranote 85, app. 2, at 617-19.
89. Rio Declaration,supra note 33, princ. 17.
90. See Agenda 21, supra note 40, 17.21.
text, an environmental impact assessment (1) promotes fully informed
decision-making that takes into account the potential environmental
effects of the proposed activity and (2) offers an opportunity for affected
citizens to understand the proposed activities and provide input in
decision-making.9' In the transboundary context, an environmental impact
assessment involves the interstate processes of notification, information
exchange, and consultation.92 Accordingly, transboundary environmental
impact assessment ensures: (1) that transboundary environmental effects
of a proposed activity are fully considered in the decision-making
process of the originating state, and (2) that affected states are given prior
notification and adequate information on the proposed activity and an
91. HUNTER ET AL., supra note 18, at 367; Knox, supra note 33, at 297; Preiss, supra
note 85, at 310; Robinson, supranote 85, at 594; Van Dyke, supranote 34, at 402.
92. See Okowa, supra note 33, at 279-80, 302. The Rio Declaration codifies the basic
norm of the interstate processes as follows: "States shall provide prior and timely notification
and relevant information to potentially affected States on activities that may have a significant
adverse transboundary environmental effect and shall consult with those States at an early
stage and in good faith." Rio Declaration, supra note 33, princ. 19. The originating state's
obligations to notify and consult stem from the customary international law principle of good
neighborliness. See Fisheries Jurisdiction Case (U.K. v. Ice.), 1974 I.C.J. 3, 23-35 (July 25),
(holding that the parties are "under mutual obligations to undertake negotiations in good faith
for the equitable resolution of their differences concerning their respective fishery rights"
pursuant to existing international law); Lake Lanoux Case (Fr. v. Spain), 53 AM. J. INT'L L.
156, 167-69 (1959) (Ad hoc Arb. 1957) (opining that according to the rules of good faith, the
upstream state has the obligation to consider different interests of other riparian states and that
the parties concerned have the duty to negotiate in good faith during which they "must consent
to suspend the full exercise of their rights"); see also ILC Commentaries,supra note 33, art. 4,
M 1-2 (explaining the duty to cooperate in good faith in the context of significant
transboundary harm); Boyle, Nuclear Energy, supra note 33, at 312 (concluding that it is "firmly
established" that states have "a customary law obligation to co-operate with neighbouring
States in the management of transboundary environmental risks," which entails notification
and negotiation to curtail risks of transboundary environmental hazards from planned
activities); Van Dyke, supra note 34, at 401 (stating that the duty to consult derive from the duty to
consider the interests of other states as well as the duty to inform, which in turn flows from the
principle of good faith in international relations). ITLOS affirmed the originating state's
obligations to inform and consult with potentially affected states partly based on the duty to
cooperate under customary international law. See infra notes 252-54 and accompanying text.
Some commentators regard the originating state's obligations to notify and consult also
as basic due diligence requirements concerning environmental state responsibility. See ILC
Commentaries, supra note 33, art. 3, 4, 7; art. 9, 6; art. 12, 2; Gunther Handl, State
Liabilityfor Accidental TransnationalEnvironmental Damage by Private Persons, 74 AM. J.
INT'L L. 525, 557 (1980); John M. Kelson, State Responsibility and the Abnormally
Dangerous Activity, 13 HARV. INT'L L.J. 197, 242-43 (1972); Okowa, supra note 33, at 280, 302. But
see Developments in the Law, supra note 33, at 1515 (questioning the wisdom of the duty to
assess environmental impact and the duty to inform as the procedural extension of
environmental state responsibility); Knox, supra note 33, at 291, 319 (questioning the majority view
that transboundary environmental impact assessment is corollary to environmental state
responsibility and constitutes part of customary international law). For the fundamental
difference between the majority and minority views regarding environmental state
responsibility, see supra note 33.
ensure a nexus between the proposed activity and the marine
As in the Espoo Convention, the draft protocol should also include
general criteria for non-listed activities or land-based activities located
outside the geographical limit. For example, ships carrying radioactive
materials are not listed in the existing instruments concerning
environmental impact assessments. Applying the generally recognized criteria,
however, such ships should be deemed to have potentially significant
effects on the marine environment due to the inherently dangerous
nature and the location of the activities. Requiring prior environmental
impact assessment does not hinder the actual exercise of the freedom of
navigation by vessels within EEZs and the high seas,38 ° and is consistent
with the provisions of UNCLOS requiring that the flag state have due
regard for coastal states' rights and duties."' Although UNCLOS
prohibits coastal states from discriminating vessels exercising the right of
innocent passage based on their cargoes,382 prior environmental impact
assessments administered by the originating state have nothing to do
with hampering vessels' innocent passage.
The United Kingdom, nevertheless, have argued that procedural
environmental obligations are already included in Article 23 of
UNCLOS to require ships loaded with ultrahazardous cargoes to carry
documentation and comply with special precautionary measures
pursuant to international agreements."' Indeed, the United Kingdom has
complied with the applicable regulations prescribed by the IMO and the
IAEA regarding marine transportation of INF Code materials. Because
this provision reflects a consensus among the parties to the Convention
regarding the international movements of radioactive materials, nothing
more should be required.4
However, when UNCLOS was concluded in December 1982, coastal
states might not have been aware of the possibility of international
maritime transport of plutonium for commercial purposes. It was in October
Normal baselines must be used except for the enumerated special geographical conditions. See
id. art. 6 (reefs); art. 7 (straight baselines for deeply indented or unstable coasts); art. 9 (river
mouths); art. 10 (bays); arts. 11, 12 (port facilities); art. 13 (low-tide elevations).
380. UNCLOS, supra note 10, art. 23, 21 I.L.M at 1274-75.
381. Id. arts. 58.3, 87.2. Article 87.2 is more broadly formulated than Article 58.3 to
require a flag state to take into account the rights and duties of any other states. Id.
382. Id. arts. 24, 26, 21 I.L.M at 1275.
383. Annex VII U.K.'s Counter-Memorial, supra note 102, at 133, 5.56 ("Maritime
transports of radioactive materials are subject to ... detailed and stringent regulations ...
which are implemented in the United Kingdom to a standard that represents international good
384. See Pedrozo, supra note 57, at 223-24 (noting that "the carriage of nuclear cargoes
was considered during UNCLOS III and resolved to the satisfaction of both coastal and
1984 that Japan commenced the first plutonium return shipments from
Europe. Since then, repeated and persistent official protests by coastal
states against the sea shipments of weapons grade plutonium, MOX fuel,
and vitrified waste have cast doubt on the existence of such consensus on
these matters. Moreover, in 1999, a U.S. district court held that
environmental impact assessment provisions under NEPA were applicable to the
federally funded marine transport of MOX fuel because of "the logical
possibility that an accident involving the Russian MOX shipment might
also have transboundary effects on American populations. 386 In light of
these developments, the proposed protocol to UNCLOS should at least
be applicable to the international maritime transports of the above
contested radioactive materials.
2. Notification and Information Exchange
Between the Concerned States
In the transboundary context, environmental impact assessments
involve a sequence of interstate processes. Under the UNEP Guidelines,
when information obtained through environmental impact assessment
indicates that a proposed activity is likely to have significant
transboundary environmental impacts, the originating state should notify the
potentially affected state of the proposed activity3.87 The originating state
should transmit any relevant information from the environmental impact
assessment documentation to the affected state, subject to domestic
information protection rules. 3" Apparently, the Guidelines require
notification and information exchange only after the preparation of
environmental impact assessments. The Guidelines are silent as to the
contents of the notification.
The Espoo Convention provides more elaborate interstate
procedures. The originating party must notify affected parties of a proposed
Annex I activity that is likely to have significant transboundary impacts
"as early as possible and no later than when informing its own public
about that proposed activity."389 This notification must includes "(a)
information on proposed activity, including any available information on
its possible transboundary impacts, (b) the nature of the possible
decision;" and (c) an identification of a reasonable time within which the
385. See supra note 156 and accompanying text.
386. Hirt v. Richardson, 127 F. Supp. 2d 833, 843 (W.D. Mich. 1999). The court,
however, denied the plaintiffs' request of injunction invoking the political question doctrine due to
potential damage to the U.S.-Russian relationship and chilling effect on nuclear
nonproliferation. Id. at 848.
387. UNEP Guidelines, supra note 84, princ. 12(a).
388. Id. princ. 12(b).
389. Espoo Convention, supranote 338, arts. 2(4), 3(1), 30 I.L.M. at 804.
notified party must respond with acknowledgement and an indication of
whether it intends to participate in the environmental impact assessment
process. 9 If the affected parties do not intend to participate in the
assessment process, the originating party conducts an environmental
impact assessment pursuant to its domestic law.39'
If the affected party, in reply to notification, indicates its desire to
participate in the assessment process, the originating party must supply
relevant procedural and substantive information that has not yet been
provided at the time of notification. Upon the request of the originating
party, the affected party must supply reasonably obtainable information
concerning the potentially affected environment under the affected
party's jurisdiction.3 92 The Espoo Convention further requires the
originating party to provide the environmental assessment documentation
itself to the affected party.3 93 Relevant information may be classified
pursuant to the requirements of applicable domestic rules, including
commercial confidentiality exceptions. 9
The Draft North American Agreement also adopts a similar
notification procedure. Under the Draft Agreement, the notification document is
to include more details of procedural and substantive information, 95
while the information exchange provision is limited to the affected
state's request for additional information.3 96 Unlike the Espoo
Convention, the Draft North American Agreement ignores reciprocity in
information exchange, as it lacks a provision dealing with the originating
state's request for information on the affected state's local environment.
Currently, it is unclear whether information exchange should occur
directly between the concerned parties or be made through the NACEC.397
As in the Espoo Convention, the Draft Agreement provides for the
affected party's right to receive completed environmental impact
According to the ILC Draft Articles, the notification must be timely
with the available supporting technical and other information. 399 The
originating state must not make any decision to authorize the proposed
activity until the receipt of the affected state's response, which must be
made within six months. 4°° The Draft Articles require reciprocal
information exchange only after the proposed project has been commenced. '° As
in the Espoo Convention, the ILC Draft Articles allow the originating
party to withhold information based on national security and commercial
While the Espoo Convention and the Draft North American
Agreement provide for notification prior to the environmental impact
assessment process, the Draft Articles, as well as UNEP Guidelines,
require notification only after the completion of an environmental impact
assessment. This is because the Espoo Convention and Draft Agreement
give the affected states the right to participate fully in the assessment
process and in the interstate process,43 while the Draft Articles and
UNEP Guidelines provide only the right to participate in the interstate
process to the affected states.
UNCLOS omits explicit references to prior notification and
information from Part XII, which deals with marine pollution prevention. 40This
omission, however, does not mean that interstate processes are irrelevant
to the protection of the marine environment. On the contrary, as ITLOS
indicated in the provisional measures, information exchange between
concerned states is vital to facilitate cooperation in marine
environmental protection pursuant to Part XII. The importance of the interstate
397. See id. arts. 8.1,9.
398. See id. art. 13.1(a).
399. ILC DraftArticles, supra note 342, art. 8.1.
400. Id. art. 8.2.
401. Id. art. 12.
402. Id. art. 14.
403. In particular, the Draft North American Agreement explicitly provides that "the
notification should be given early enough to provide the Potentially Affected Party and its
public a meaningful opportunity to have their comments considered and, in cases where a
transboundary environmental assessment is conducted, to participate in that assessment
process'" NACEC, supra note 341, art. 3.
404. See discussion supraParts II.C.2, I.B.4. Article 206 merely encourages the
circulation of the assessment documentation through the competent international organizations. See
UNCLOS, supra note 10, art2.06, 21 I.L.M at 1306.
process was further highlighted by the Annex VII tribunal, which
reiterated the ITLOS ruling in prescribing the further provisional measures.
Similarly, the OSPAR tribunal attempted to encourage interstate
information exchange through the creative interpretation of the information
disclosure provision, although the regional sea regime's attempt turned
out to be inefficacious. Therefore, a proposed protocol to UNCLOS
should include provisions for interstate processes.
In the draft protocol, the notification process should follow the basic
model of the Espoo Convention and the Draft North American
Agreement, not the ILC Draft Articles and the UNEP Guidelines. As discussed
above, the affected coastal state has no control over activities within the
originating state's territory. The affected coastal state also abrogates
prescriptive jurisdiction and enforcement jurisdiction regarding
environmental impact assessments of foreign vessels within its territorial sea
and EEZ.4°5 To compensate these limitations and curtailments, the
affected state should have the right to participate fully in the environmental
impact assessment process of the originating state. In particular,
notification followed by information exchange at the pre-decision stage would
help the originating state take into account the local marine environment
of the affected coastal states in conducting an environmental impact
assessment. Thus, a draft protocol to UNCLOS should adopt the basic
notification provision and the reciprocal information exchange provision
in the Espoo Convention. In addition, as in the Espoo Convention and
the Draft North American Agreement, the originating state should also
provide the assessment documentation itself to the affected coastal state.
These procedural requirements should effectuate what ITLOS
envisioned in prescribing the provisional measures.
On the other hand, the draft protocol should allow the originating
state to classify the relevant information pursuant to applicable domestic
rules concerning national security and commercial confidentiality. This
exception is in conformity with the Espoo Convention and the ILC Draft
Articles, as well as the tacit recognition of commercial confidentiality in
the OSPAR final award. To prevent the abuse of the confidentiality
provision, there should be a strict condition of non-discrimination, in which
the affected state, as a legal person, enjoys the right of information equal
to those of the public of the originating state. '°6 In addition, the affected
405. See discussion supra Part IV.B.1; see also discussion infra Parts IV.B.3, IV.B.4
(allowing the originating state to apply its own procedures for public participation and the
environmental impact assessment documentation).
406. See ILC Draft Articles, supra note 342, art. 15 (providing that "a State shall not
discriminate on the basis of nationality or residence or place where the injury might occur, in
granting to [affected natural or legal] persons, in accordance with its legal system, access to
judicial or other procedures to seek protection or other appropriate redress"); Knox, supra
state should have access to the originating state's administrative and
judicial procedures to resolve disputes regarding whether particular
information should407be classified based on national security or
In the MOX dispute, for example, Ireland should have received the
notification of the proposed project and should have exchanged relevant
information with the United Kingdom before the preparation of the 1993
Environmental Statement. In addition, the United Kingdom should have
notified Ireland and en-route states of the planned maritime transports of
INF Code materials and should have disclosed to them at least basic
information including the route and itinerary of the planned shipments.
Although the United Kingdom might have taken advantage of the
recognized exception to withhold information concerning details of business
arrangements and security measures for MOX shipments, its complete
refusal of prior notification and information exchange should have been
unacceptable. On the other hand, Ireland should have sought judicial
review before a municipal court of the United Kingdom regarding the
U.K. authority's invocation of the commercial confidentiality exception
to justify the suppression of particular pieces of information associated
with MOX production. 4°'
3. Public Participation in the Environmental
Impact Assessment Process
In the domestic context, public participation processes in
environmental impact assessments offer concerned individuals an opportunity to
be heard and considered in decision-making.409 The UNEP Guidelines
broadly encompass "government agencies, members of the public,
experts in relevant disciplines and interested groups" as persons to be given
an adequate opportunity to comment on an environmental impact
assessment before the governmental authority makes a decision concerning
whether to authorize the proposed activity.4'0 The competent authority
should reach such a decision only after a sufficient period to consider the
submitted comments has lapsed.'
note 33, at 300 (stating that under the non-discrimination principle, the originating state
should provide nonresidents with opportunities to participate in environmental impact
407. See Knox, supra note 36, at 300 (including equal access to all administrative and
judicial procedures in the participatory rights protected by the non-discrimination principle).
408. See OSPAR U.K.'s Rejoinder, supra note 273, at 5, 12 (indicating that Ireland, as
a natural or legal person, had a right to receive certain information under the Environmental
Information Regulations 1992, which is enforceable before the United Kingdom's courts).
409. Robinson, supra note 85, at 594.
410. UNEP Guidelines, supra note 84, princ. 7.
411. Id. princ. 8.
In the transboundary context, the right of participation is extended to
the concerned persons in affected states.4 2 Under the Espoo Convention,
the originating state must implement an environmental impact
assessment procedure with a public participation process, in which concerned
individuals enjoy a participatory opportunity equal to those of the public
of the originating state.4 3 Concerned parties must ensure that the affected
persons in the affected state be informed of the proposed activity and be
given opportunities to submit their comments directly or indirectly to the
competent authority of the originating state.4"4 The Convention requires
the originating party to pay due regard to the comments received in
reaching the final decision.415
The public participation process in the Draft North American
Agreement is more extensive. In addition to the basic requirements
included in the Espoo Convention,4 6 the Draft Agreement provides that the
originating party must allow the concerned persons in affected states to
attend any domestic public hearing or meeting relating to the
transboundary environmental assessment.4 7 To compel the originating state to
put the public participation procedure into practice, the completed
assessment documentation must have a section on public participation
including (1) the summary of coordination between governmental
agencies and concerned persons in the originating state and the affected state
and (2) a summary of substantive comments and responses. 411
The Antarctic Protocol includes provisions guaranteeing individuals
in affected states access to the transmitted information and assessment
documentation. Under the Antarctic Protocol, the originating state must
make a draft comprehensive environmental evaluation publicly available.
In addition, the draft evaluation must be circulated among all the parties,
who must make it publicly available. Each party must allow the public to
submit comments within a period of ninety days. 49 As in the Draft North
American Agreement, a final comprehensive environmental evaluation
must include the comments (or their summaries) and address the
comments' concerns. The final evaluation must be circulated among the
parties and made available to the public.
Id. art. 10.1(a), app. IV.6.
Antarctic Protocol, supranote 344, Annex I, art. 3.4.
Id. Annex I, art. 3.6.
Similarly, the World Bank requires the borrower to consult with
affected persons and nongovernmental organizations (NGOs) as early as
possible during the environmental assessment process for all Categories
A and B projects. 2' To facilitate meaningful consultation, the borrower
must provide them with relevant information in a timely manner before
the consultation.4 2 For Categories A and B projects, the borrower must
make environmental assessment reports publicly available to the affected
persons and local NGOs.4 2 ' The Bank ensures the implementation of this
provision by making it a prerequisite for a project appraisal by the
Bank.424 The ADB and EBRD closely follow the World Bank's
approach, with EBRD explicitly indicating that the Espoo Convention's
public participation procedures must be followed in the transboundary
Although the ILC Draft Articles attach importance to public
participation, 427 their provisions are quite vague. The Draft Articles require
concerned states to (1) provide the public with relevant information and
(2) ascertain their views on the proposed activity.4 Relevant information
includes the basic description of the proposed activity, the risks involved,
and the potential harm resulting from the activity. As to the second
step, the ILC's Commentaries ambiguously note that there are many
modalities for ascertaining the views of the public, one of which is to
review the factual, legal and policy basis of decision-making through
administrative tribunals, courts, or groups of the persons concerned. 3 °
The Commentaries make little efforts to elaborate on how to guarantee
the affected persons' right to be heard and actually considered in
Although Article 206 of UNCLOS does not include any provisions
on the affected persons' right to participate in environmental impact
assessments, a draft protocol should incorporate the widely accepted norm
of public participation. As discussed, the Convention promotes the
adoption of generally recognized international standards to protect the marine
environment.4 3 ' Through the public participation process, the concerned
persons in affected states can express their concerns as well as offer
knowledge and expertise regarding the affected local marine
environment to help the originating state make an informed decision. On the
other hand, to respect the originating state's territorial sovereignty,
participation by concerned persons in affected states should be subject to the
principle of non-discrimination. Under the draft protocol, concerned
individuals in the affected state should have the right to obtain
information, the right to make comments and objections, and the right to attend
hearings to the same extent as the public in the originating state.4 33 The
originating state need not implement additional procedural safeguards
concerned citizens in affected states. To effectuate the affected persons'
right to information, the affected state should make the information
received through the interstate processes of notification and information
exchange publicly available4.3 4
To oblige the originating state to consider and address affected
persons' concerns, the originating state must create a record of public
participation, including at least the summaries of comments and
response to them. The originating state may compile the record as part of
the assessment documentation, as in the Draft North American
Agreement and the Antarctic Protocol, or may produce it as a separate
document, as implied by the Espoo Convention (depending on specific
requirements in applicable domestic environmental assessment
procedures).435 In either case, the originating state should transfer the
record to the affected state, together with the assessment documentation.
The affected state should make the record and the assessment
documentation publicly available. In addition, applying the principle of
non-discrimination, concerned persons in the affected state should have
the same right to seek administrative and judicial review as the public of
the originating state has. Even though the affected state indicates its
intention not to participate in the environmental impact assessment
process, concerned individuals in the affected state should be given all
the rights under the above public participation procedures.
Indeed, concerned persons in both originating and affected states
have exhibited keen interests in MOX re
lated activities. In April 2002
93 percent of all Irish households participated in a grassroots postal
campaign against the operation of the MOX plant. 36 In September 2002,
a coalition of Irish and U.K. environmentalists protested the arrival of
MOX return shipments at Sellafield.437 Under the proposed protocol,
those persons could have expressed their concerns through the public
participation procedure at the beginning of the authorization process,
when BNFL prepared the 1993 Environmental Statement.
With extensive rights to participate in environmental impact
assessment, concerned persons should refrain from employing physical
obstructions in their protests against planned activities. As mentioned
above, Greenpeace activists boarded a PNTL ship carrying vitrified
waste through the Panama Canal in 1998.438 These activists operated
without the right to be informed of the planned radioactive shipments
and the right to voice their concerns before the commencement of
international transport. Although they successfully expressed their objections
and let the public know about the vulnerability of the ongoing activity,
the obstruction could have defeated both their goals and the purposes of
435. The Espoo Convention requires the originating state to transfer to the affected state
the environmental assessment documentation and the final decision "along with the reasons
and consideration on which it was based." Espoo Convention, supra note 338, art. 6(2), 30
I.L.M. at 807.
436. Annex VII Ir.'s Memorial, supra note 5, at 24, 1.67.
437. See ProtestFlotillaReady, supra note 1; Irish Students Stage Anti-Nuclear Protest
Outside British Embassy, AGENCE FRANCE-PRESSE, Sept. 16, 2002, available at 2002 WL
438. See supra note 167 and accompanying text.
UNCLOS had an accident occurred.439 While aggressive actions should
be discouraged, concerned persons should be allowed to orderly monitor
the commenced activity, supplementing the originating state's duty to
conduct monitoring under Article 204 of UNCLOS."40
4. The Required Contents of the Environmental
When the originating state prepares an environmental impact
assessment, they are required to include specific categories of information
identified by applicable international instruments. The UNEP Guidelines
outline the generally accepted contents of the assessment documentation.
According to the Guidelines, an environmental impact assessment
should include, at least, (1) a description of the proposed activity and the
potentially affected environment; (2) practical alternatives; (3)
"assessment of direct, indirect, cumulative, short-term, and long-term effects"
of the proposed activity and alternatives; (4) available mitigation
measures; (5) an identification of knowledge gaps and uncertainties; and (6) a
brief and non-technical summary of the above information. 44' In the
transboundary context, an environmental impact assessment should also
include the potential environmental effects of the proposed activities on
"the environment of any other State or areas beyond national
The Espoo Convention adds several important elements to the UNEP
Guidelines. The Convention requires the environmental assessment
documentation to identify predictive methods, underlying assumptions,
and environmental data. 43 If appropriate, the documentation also
includes monitoring and management programs and plans for post-hoc
analysis." These elements are also widely accepted in the environmental
impact assessment procedures of the Antarctic Protocol, the World Bank,
regional banks, and the Draft North American Agreement, although their
provisions vary in detail.45
439. See Pedrozo, supra note 57, at 221 (expressing the concern that anti-nuclear
activists' action could have adversely affected the safe operation of the vessel).
440. See UNCLOS, supra note 10, art. 204, 21 I.L.M at 1309 (providing for
"[m]onitoring of the risks or effects of pollution.").
441. UNEP Guidelines, supranote 84, princ. 4.
442. Id. princ. 4(g).
443. Espoo Convention, supranote 338, art. 4(1), app. II, 30 I.L.M. at 806, 814.
444. Id. app. II, (h) , 30 I.L.M. at 814. The Espoo Convention permits the parties to
adopt tougher domestic environmental impact assessment rules. Id. art. 2(9), 30 I.L.M. at 804.
445. Antarctic Protocol, supra note 344, Annex I, art. 3; ADB, supra note 343, 8; EBD
Procedures,supra note 343, Annex 2, at 23-25; World Bank, supra note 84, Annex B (content
of an Environmental Assessment Report for a Category A project); NACEC, supra note 341,
Unlike other instruments, the ILC Draft Articles do not specify the
contents of the environmental assessment documentation. The ILC's
Commentaries merely identify "evaluation of the possible transboundary
harmful impact of the activity" on persons, property, and the
environment to be included in the documentation." 6 The Commentaries simply
leave details to domestic laws. 4'7
To supplement the existing vague provision in Article 206 of the
UNCLOS, a draft protocol should require the originating state to include
in the environmental assessment documentation the items above that are
widely recognized in the existing instruments. In each item, a description
should focus on the effects of the planned project on the marine
environment. On the other hand, the originating state need not prepare a
report specifically tailored to marine environmental impact assessment.
To reduce administrative burden on the originating state, it may use a
general environmental impact assessment report prepared under its
domestic law for the purpose of fulfilling its obligation under Article 206,
so long as such a general assessment report is in conformity with the
requirements of the draft protocol. This approach is consistent with the
philosophy of UNCLOS encouraging states to adopt generally applicable
international standards, while respecting the originating state's sovereign
rights to regulate activities within its territory.4 8
For example, the 1993 Environmental Statement should have
included details of the chosen and alternative methods of treating
radioactive effluents from the MOX plant, available mitigation measures,
and the data used to estimate radiation doses to the critical group. The
Environmental Statement should have discussed radiological impacts on
the biota and the ecosystems of the Irish Sea and, should have noted any
gaps or uncertainties in scientific knowledge on marine biology. The
Statement should have identified the probable increase of THORP
reprocessing business and the international movements of radioactive
materials as a consequence of MOX production, and should have
assessed the cumulative effects of these related activities." 9 The United
Kingdom indicated that modifications in the existing reprocessing
contracts or any new contracts at THORP would be subject to a separate
review process, and therefore should be excluded from the
environ446. ILC Commentaries,supra note 33, art. 7, 1 7.
448. In the case of states with federal systems, laws and regulations adopted by a
competent sub-national governmental institution may be applicable provided that such laws and
regulations address the content requirements outlined in the proposed protocol. See Robinson,
supra note 85, app. 1, at 611-62, 616 (reporting that sub-national authorities in Australia,
Canada, and the United States have implemented their own environmental impact assessment
procedures by 1992).
449. See supra notes 177-88 and accompanying text.
mental impact assessments of the MOX plant.4 0 However, future
assessments of related activities should not release the originating state
from its existing obligation to assess the cumulative impacts of the
planned activity. If this protocol had been introduced, Ireland could have
pointed to pieces of information the United Kingdom had been required
to supply in the environmental impact assessment of the MOX plant.
5. Interstate Consultation
After the originating state has prepared an environmental impact
assessment, the concerned states should enter into consultation. While the
UNEP Guidelines require their prior consent to establish the consultation
process, 45' the Espoo Convention does not require consent.4 2 The
Convention provides for mandatory consultations after the completion of the
environmental assessment documentation. The originating party must
enter into consultations with the affected parties regarding the potential
transboundary effects of the proposed activity and actions to minimize
its impacts, such as possible alternatives, mitigation measures,
monitoring, and other forms of possible mutual assistance. 53 The final decision
on the proposed activity must take into account the outcome of the
consultations, as well as the environmental assessment documentation and
comments..4 ' The originating party must provide the affected party with
the final decision, together with the reasons and considerations that
support the decision. 5
The Antarctic Protocol also provides for mandatory consultations
through the Antarctic Treaty Consultative Meeting, at which the draft
comprehensive environmental evaluation is considered. 6 The final
compdruerhinegnscivoensuevltaaltuioantioanndmmuustst ibneclcuidrceulaatesudmtomaarllypaorftiecso mtomtheentTsrereactye.i4v57ed
Under Article 9 of the ILC Draft Articles, interstate consultation is
contingent upon a request by either of the concerned states. 45' Through
interstate consultation, the concerned states must seek acceptable
solutions regarding preventive measures to address significant
transboundary harm potentially resulting from the proposed activity.459
450. Annex VII U.K.'s Counter-Memorial, supra note 102, at 110-11, 5.09.
451. UNEP Guidelines, supra note 84, princ. 12.
452. See Espoo Convention, supranote 338, art. 5, 30 I.L.M. at 806.
454. Id. art. 6(1), 30 I.L.M. at 806-07.
455. Id. art. 6(2), 30 I.L.M. at 807.
456. Antarctic Protocol, supra note 344, Annex I, art. 3.5.
457. Id. Annex I, art. 3.6.
458. ILC DraftArticles, supra note 342, art. 9.1.
459. Id.; ILC Commentaries,supra note 33, art. 9, 7 ("Article 9 may be invoked
whenever there is a question about the need to take preventive measures.").
The Draft Articles, nevertheless, do not make consultation obligatory at
the pre-decision stage. The concerned states may enter into consultation
either before decision-making or after the commencement of the
activity. 6° Reflecting its broader scope, the Draft Articles mandate that
the concerned states equitably balance environmental and other
considerations in crafting solutions4. 6' Accordingly, the concerned states
must take into account "all relevant factors and circumstances"
including, inter alia, the significance of environmental and other harm
and mitigation and prevention measures available; the socioeconomic
importance and economic viability of the proposed activity; the costs of
prevention to be borne by the originating state and, as appropriate, the
affected state; and the domestic standards applicable in the affected state
and in comparable regional and international practice.462
Unlike the above instruments, the Draft North American Agreement
contains no provision concerning interstate consultation prior to
decision-making. The Draft Agreement only includes an incomplete
provision on on-going consultation, which is apparently designed to
facilitate dispute settlement between concerned states."
UNCLOS itself has no explicit provision for interstate consultation
regarding a planned activity that lacks an imminent or actual danger.
Nevertheless, the originating state's duty to consult with the potentially
affected state is regarded as integral part of UNCLOS. ITLOS
highlighted the importance of this duty by urging the concerned parties to
cooperate in devising measures to address potential risks from the
proposed activity within a short timeframe before the commencement of the
activity.4 The Annex VII tribunal not only reiterated the ITLOS ruling,
but also specifically recommended that the parties establish a framework
for effective bilateral coordination to deal with the disputed activity.411
Accordingly, a draft protocol to UNCLOS should include a mandatory
interstate consultation provision at the pre-decision stage, as well as at
the post-decision stage of monitoring. As in the Espoo Convention and
the ILC Draft Articles, the concerned states should work together
through interstate consultation in formulating measures to prevent and
mitigate the potential effects of the proposed project. Like the Espoo
Convention and the Antarctic Protocol, the draft protocol should require
460. ILC Commentaries,supranote 33, art. 9, 1 6.
461. ILC DraftArticles, supra note 342, art. 9.2.
462. Id. art. 10.
463. NACEC, supra note 341, art. 18 ("Any Party may request consultation regarding
any aspect of the operation of these recommendations including any determination, action or
inaction taken thereunder.") (provisions to be elaborated).
464. ITLOS Provisional Measures, supranote 12, at 19, 184.
465. See supra notes 313-14 and accompanying text.
the originating state to consider the outcome of interstate consultation, as
well as the environmental impact assessment documentation, in making
a decision regarding the authorization of the proposed activity.
In the MOX plant dispute, the United Kingdom offered to have
consultations with Ireland before the justification of the MOX plant, as well
as after the ITLOS order. Nevertheless, as revealed in the ITLOS and
Annex VII proceedings, there has been almost no indication that the
parties to the dispute sought to reach a balanced solution." Under the
proposed protocol, the United Kingdom should have taken into
consideration not only economic viability of the MOX plant, but also potential
harm to the marine environment of the Irish Sea. The United Kingdom
should have cooperated with Ireland in crafting measures to monitor and
mitigate the direct and cumulative impacts of MOX production.
As to international transports of radioactive materials, the proposed
protocol should require the United Kingdom, as the flag state of PNTL
vessels, to enter into consultation with en-route states in order to develop
monitoring and contingency plans. 67 Although the United Kingdom
might claim rights to innocent passage and the freedom of navigation,
these rights should be qualified by the United Kingdom's responsibility
to prevent transboundary environmental harm to coastal states. When
UNCLOS was adopted, the parties to the Convention purported to strike
a balance by allowing coastal states to confine the innocent passage of
foreign ships carrying ultrahazardous cargoes to designated sea-lanes,
while not requiring maritime states to consult with coastal states
regarding shipments of ultrahazardous materials.4 68 However, this provision
does not reflect the consensus among the parties regarding the
subsequently protested INF cargoes. A flag state's intentional disregard of
customary good faith obligations regarding a contested ultrahazardous
activity on its flagged vessel should amount to a willful act to cause
serious pollution, which would make the passage of such vessels
noninnocent.469 In addition, the Convention mandates states to resolve the
conflict of interests in the use of EEZs "on the basis of equity and in the
light of all the relevant circumstances.,'470 Thus, the consultation
requirement should be applicable to international shipments of INF Code
materials through the territorial seas and EEZs of en-route states. With
466. See supranotes 259, 313 and accompanying text.
467. See Van Dyke, supra note 41, at 382; Van Dyke, supra note 34, at 400-02; Van
Dyke, supra note 165 (asserting that states assume the duty of prior notification and
consultation by way of customary international law and Article 199 of UNCLOS regarding
468. See supra note 60 and accompanying text.
469. Van Dyke, supranote 41, 384-85; see also supranotes 92, 252-54 and
470. UNCLOS, supra note 10, art. 59, 21 I.L.M at 1280.
flag states' prior consultation and cooperation in implementing
contingency measures, coastal states should refrain from taking aggressive
actions to expel vessels loaded with INF cargoes from sea areas under
their jurisdiction. Such aggressive actions could result in disastrous
consequences to the local marine environment, as well as to the goals of
UNCLOS. On the other hand, en-route states should have the rights to
monitor INF shipments closely, which should complement the
originating state's duty under Article 204.47'
6. Dispute Settlement Between the Originating
State and a Non-Notified State
The proposed marine environmental impact assessment process
could involve the following two types of disputes: (1) legal disputes
concerning the interpretation and application of relevant provisions and
(2) essentially factual disputes where a non-notified state believes that
the proposed activity may likely cause significant transboundary harm to
it, while the originating state does not regard the proposed activity as
such. Because judicial or arbitral tribunals, which are provided for in
UNCLOS,472 are incapable of resolving scientific and technical factual
disputes, a special mechanism is necessary. The Espoo Convention, the
Draft North American Agreement, and the ILC Draft Articles envision
such dispute settlement provisions.
The Espoo Convention provides for an inquiry commission, which is
comprised of three scientific experts. 473 The requesting party and
responding party appoint one expert each, and the two appointed experts
designate the third expert by common agreement.474 A party interested in
the factual nature of the subject matter and possibly affected by an
opinion in the matter may, upon the consent of the inquiry commission,
intervene in the inquiry proceedings. 475 The commission must issue the
final opinion within two months, unless it extends this time limit for a
period not exceeding two months. 476
The Draft North American Agreement uses the information request
procedure for a non-notified party as a functional equivalent to the above
process in the Espoo Convention. If a potentially affected party has not
yet received notification but has a reasonable concern about the potential
transboundary effects of the proposed project, that party may request
Id. art. 204 (providing for the duty to monitor the risks and effects of marine
polluUNCLOS, supra note 10, pt. XV, 21 I.L.M at 1322-26.
Espoo Convention, supra note 338, art. 3(7), 30 I.L.M. at 805.
Id. app. IV, 2, 30 I.L.M. at 815.
Id. app. IV, 9111, 30 I.L.M. at 816.
Id. app. IV, 9113, 30 I.L.M. at 816.
information on the proposed project. 7 The originating party must
promptly reply to such a request "to the extent possible. 478 Currently, it
is unclear whether non-notified parties can resort to the consultation
procedure in a similar situation under the Draft Agreement. 9
The ILC Draft Articles incorporate the essence of the above
information request procedure in the consultation process for non-notified states.
When a state has reasonable grounds to believe that the proposed activity
may likely cause significant transboundary harm to it but was not
notified by the originating state, the non-notified state may request the
originating state to give a notification. The request must enclose a
documented explanation outlining its grounds. 8 ° If the originating state
nevertheless determines that the notification requirement is inapplicable,
it must inform the requesting state, within a reasonable period in a
documented explanation outlining its grounds. If the requesting state is
unsatisfied, upon its request the two states must enter into
For a draft protocol to UNCLOS, mechanisms to settle scientific and
technical disputes are essential because degradation of the marine
environment involves the cumulative effects of multiple and complex
sources, which may cause factual disagreements between the originating
state and potentially affected coastal states. In particular, the inquiry
commission similar to the Espoo Convention may be suited to resolve
disputes concerning the precise technical and scientific issues, as in the
MOX plant dispute. In addition, such mechanisms enable parties to settle
disputes at the early stage of decision-making processes when the
originating state can make modifications in the proposed activity much more
easily. In the MOX plant case, the United Kingdom did not notify
Ireland of the proposed construction of the MOX plant or BNFL's
preparation of the 1993 Environmental Statement, believing that MOX
production would not involve significant environmental effects. After
years of unsuccessful diplomatic efforts, Ireland initiated the legal
proceedings well after BNFL completed the construction of the MOX plant
and just before BNFL commenced the plutonium commissioning of the
project and made dispute resolution much more difficsutlatk.48e2s in the MOX
disputed plant. This raised the United Kingdom's
477. NACEC, supra note 341, art. 8.1.
478. Id. art. 8.3.
479. See id. art. 18.1. The consultation procedure appears to deal with materialized
disputes between the parties concerning the interpretation and application of its provisions. See
supranote 463 and accompanying text.
480. ILC DraftArticles, supranote 342, art. 11.1.
481. Id. art. 11.2.
482. See supra notes 237-41 and accompanying text.
However, the parties to the dispute should use the inquiry
commission only after they fail to settle the dispute through negotiations. Article
283 of UNCLOS requires the parties to exchange their views before they
use a tribunal designated under Article 287.483 Similarly, the draft
protocol should adopt a preference for negotiated settlements, which are
better suited to deal with generalized factual concerns arising from lack
of communication, like en-route states' objections to the marine
transports of INF Code materials.4 In addition, prior information exchange
and consultation should help the parties better shape the terms of
reference for the inquiry commission. As outlined in the Draft North
American Agreement and the ILC Draft Articles, the non-notified state
should request notification and information regarding the proposed
project, and the originating state should reply to such request as soon as
possible in good faith. If the non-notified state is not satisfied with the
originating state's response, it may request consultation. If the parties
fail to resolve the factual dispute, either of them may resort to the
inquiry commission, which issues a binding factual determination as to
whether the proposed activity is likely to cause significant harm to the
marine environment of the non-notified state.
Had the proposed protocol applied to the MOX plant dispute, Ireland
With an unsatisfactory response from the United Kingdom, Ireland could
have demanded immediate consultation and ultimately could have
resorted to the inquiry commission under the proposed protocol before
BNFL completed construction of the disputed plant.
7. The Role of International and Regional
Institutions in the Marine Environmental
Impact Assessment Process
While each state bears the principal responsibility to administer its
own environmental impact assessment process, international and
regional institutions play an important role in facilitating cooperation and
coordination among states in the conduct of transboundary
environmental impact assessment. The ILC Draft Articles provide a general duty
483. UNCLOS, supra note 10, art. 283, 21 I.L.M at 1322; see also id. art. 286, 21 I.L.M
at 1322 (making available compulsory dispute settlements before a chosen tribunal "where no
settlement has been reached by recourse to section I [of Part XV]," which includes Article
283), art. 287, 21 I.L.M. at 1323 (allowing states to choose one or more of the following
tribunals: (a) ITLOS; (b) the International Court of Justice; (c) Annex VII tribunal; and (d) a
special arbitral tribunal under Annex VIII).
484. See supra note 166 and accompanying text.
485. See supra note 173 and accompanying text.
for states to bilaterally cooperate, and if necessary through international
organizations to prevent significant transboundary harm.486 The UNEP
Guidelines reduce this general duty to more specific ones for the
transboundary environmental impact assessment process. Under the UNEP
Guidelines, states should endeavor to create bilateral, regional, or
multilateral arrangements for notification, information exchange, and
consultations regarding the potential transboundary effects of proposed
The Espoo Convention further elaborates on the above provision and
encourages parties to cooperate through bilateral and multilateral
agreements to devise additional environmental assessment requirements, to
establish institutional, administrative, and other arrangements, and to
harmonize methods and standards used in domestic environmental impact
assessment processes. 88 Pursuant to this provision, the EU member states
entered into the process of harmonization. Under the 1997 EC Directive,
member states are required to make their domestic environmental impact
assessment procedures consistent with the requirements in the EC
directive.4 9 The EU members must also adopt domestic rules to implement the
interstate process. 498
International financial institutions assist information exchange
among interested states and the general public by serving as a depository
of the environmental impact assessment documentation. Under the
World Bank's procedure, the borrower must transmit environmental
assessment reports for Categories A and B projects to the Bank, which
then makes the reports publicly available through its InfoShop, an
information center and book store accessible physically or via the
Internet.91 Similarly, the ADB requires that the summaries of
environmental impact assessment reports be disseminated worldwide through
the depository library system and on its website.492 EBRD also makes
environmental impact assessment reports and their summaries accessible
via its Business Information Center4.93
In addition, these multilateral development banks attempt to
coordinate their environmental impact assessment processes with other similar
regional and international assessment procedures. For example, the
486. ILC DraftArticles, supra note 342, art. 4.
487. UNEP Guidelines, supranote 84, princ. 11.
488. Espoo Convention, supranote 338, app. VI, 30 I.L.M. at 817.
489. See 1997 EC Directive, supra note 220, arts. 2.2, 2.2a.
490. See id. art. 2.2; see also Gray, supranote 85, at 118-24.
491. World Bank, supra note 84, 19; see also World Bank, The InfoShop, at
http://www.worldbank.org/infoshop/ (last visited Nov. 6, 2003).
492. ADB, supra note 343, 110. An interested party must make a request to the ADB in
order to obtain the entire environmental impact assessment documentation. Id.
493. EBD Policy, supranote 343, Annex 2, 7 6, at 19-20.
World Bank requires the borrower to comply with the environmental
assessment requirements of applicable international agreements.4 9"
EBRD specifically indicates that the Bank will "support the spirit,
purpose and ultimate goals" of the Espoo Convention and encourage
borrowers to incorporate rights and obligations under the Convention
(and other relevant international agreements) through project finance.495
UNCLOS requires that states cooperate internationally and
regionally in formulating and elaborating marine environmental protection
measures.4 As discussed, the regional seas regimes embody regional
cooperation in Part XII of UNCLOS .4' Accordingly, a draft protocol to
UNCLOS should promote cooperation among states in the
environmental impact assessment process through the regional seas regimes. As
in the Espoo Convention, the regional seas regimes should offer
administrative support and assist states in developing additional environmental
assessment standards, if necessary, and assist harmonization of domestic
environmental impact assessment procedures if possible. Pursuant to
Article 202 of UNCLOS, the regional seas regimes, in cooperation with
multilateral development banks and donor states, should offer technical
assistance to developing countries in the implementation of the proposed
marine environmental impact assessment protocol.498 In addition, the
regional seas regimes, together with UNEP, should facilitate dissemination
of environmental impact assessment reports. Under Article 206, the
originating state must either publish the marine environmental impact
assessment documentation or circulate it through the competent
international organizations at appropriate intervals.4 99 Because UNEP, the
coordinator of regional seas regimes, has played a central role in
promoting environmental impact assessment through its Guidelines, it should be
qualified as the competent international organization to receive marine
environmental impact assessment reports. Like the multilateral
development banks, UNEP should publish the reports through its website and
transfer them to the commission of each regional sea regime, which
should serve as a local depository of marine environmental impact
494. World Bank, supra note 84, 1 3, Annex B, 2(b).
495. EBD Policy,supra note 343, 1 8, 11 at 4, 42 at 13.
496. UNCLOS, supra note 10, arts. 197, 207, 21 I.L.M at 1308, 1310; see also supra
notes 80-81 and accompanying text.
497. See supranotes 81-83 and accompanying text.
498. UNCLOS, supra note 10, art. 202, 21 I.L.M at 1309 ("States shall, directly or
through competent international organizations ... (c) provide appropriate assistance,
especially to developing States, concerning the preparation of environmental assessment.").
499. Id. art. 206, 21 I.L.M at 1309.
500. For languages to be used in the environmental impact assessment documentation,
see notes 422, 434.
In addition, there should be coordination between the draft
procedure and existing procedures for transboundary environmental impact
assessment. The originating state should fully take into account affected
coastal states' concerns on the marine environment in the environmental
assessment documentation and the interstate process under existing
instruments including, inter alia, the Espoo Convention, the 1997 EC
Directive, and the Antarctic Treaty regime, if they are applicable.'O Then,
the originating state need not have a separate environmental assessment
process for the purpose of satisfying obligations under UNCLOS. In
addition, international financial institutions should heed the requirements
in the proposed protocol and protect marine environments by
administering their own environmental impact assessment procedures.
The Sellafield MOX plant has been a matter of controversy between
the opposite sides of the Irish Sea since the early 1990s. Substantively,
the controversy involves the potential environmental effects of direct and
cumulative radioactive discharges from MOX production and the
potential hazards of frequent marine shipments of radioactive materials.
Almost a decade later, however, Irish concerns were crystallized into a
procedural dispute concerning the adequacy of environmental impact
assessments and associated interstate processes. Unfortunately, the
dispute between Ireland and the United Kingdom has been protracted and
aggravated due to ambiguities in the relevant procedural provisions of
UNCLOS. Although the competent tribunals have attempted to resolve
the dispute through flexible interpretations of the applicable instruments
and general international law, the tribunals are incapable of filling the
gap in the existing instruments.
To avoid repeating similar incidents in the future, an environmental
impact assessment protocol to UNCLOS must be developed to ensure
that the originating state prepares an environmental impact assessment
that takes into account the potential significant impacts of the proposed
activity on the marine environment within the territorial sea or the EEZ
501. See supra notes 220-21 and accompanying text (stating that after the construction
of the MOX plant, the 1997 EC Directive entered into force for both Ireland and the United
Kingdom). The Espoo Convention took effect for both parties on October 2002. See Annex
VII Ir.'s Memorial, supra note 5, at 104, 6.19 & n.28 (noting that the United Kingdom
ratified the Espoo Convention in 1997; Annex VII U.K.'s Counter-Memorial, supra note 102, at
119, 5.29(4) (pointing out that on
ly on July 2002
, Ireland did ratify the Convention, which
then entered into force for it on October 2002). See generally supra note 161 and
accompanying text (discussing the potentially harmful effects of INF shipments via Cape Horn and the
Cape of Good Hope on the terrestrial and marine environments of the Antarctica).
of a coastal state. To make it operational, such a protocol should include:
(1) the list of covered activities and a set of criteria for non-listed activities
concerning the likelihood of potential significant impacts on the marine
environment; (2) provisions for notification and information exchange
before the commencement of the originating state's domestic assessment
process; (3) a procedure for public participation; (4) a list of items to be
included in the environmental impact assessment documentation;
(5) interstate consultations to achieve mutually agreeable solutions in
mitigation measures, monitoring schemes, and contingency plans;
(6) settlement of factual disputes between a non-notified state and the
originating state through interstate processes and an inquiry commission;
and (7) international and regional cooperation in marine environmental
impact assessment through UNEP and the regional seas regimes and
coordination with the environmental assessment requirements in the existing
instruments. The proposed protocol should accommodate the competing
interests of the states involved, as well as the distinct concerns of affected
persons, and help them cooperate in protecting the marine environment.
B. Proliferationof Tribunals.................................................. 382 1 . ITLOS Judgment on Provisional Measures ................ 382 2. OSPAR Tribunal's Final Award Concerning Access to Information ................................................. 385 3. Annex VII Tribunal's Order on Further Provisional Measures .................................................. 389
C. Lessons to Learn................................................................ 393 III. COMPARATIVE ANALYSIS OF MAJOR INTERNATIONAL ENVIRONMENTAL IMPACT ASSESSMENT MECHANISMS AND THE PROPOSED PROTOCOL TO UNCLOS .......................... 398 A. The Frameworkof Comparative Study .............................. 398 B. ComparativeAnalysis of Environmental ImpactAssessment Mechanisms and Its Application to UNCLOS............................................... 401 1. Methods and Criteria to Determine Whether Proposed Activities Are Subject to the Environmental Impact Assessment Requirements ...... 401 2. Notification and Information Exchange Between the Concerned States ................................................... 408 3. Public Participation in the Environmental Impact Assessment Process ........................................ 412 4. The Required Contents of the Environmental Assessment Documentation ........................................ 417 5 . Interstate Consultation ................................................ 419 6. Dispute Settlement Between the Originating State and a Non-Notified State ................................... 422 7. The Role of International and Regional Institutions in the Marine Environmental Impact Assessment Process ........................................ 424
CONCLU SION ......................................................................................... 427 6. See infra notes 102-116 and accompanying text. MOX fuel consists of a mixture of
About MOX Fuel Shipments by Sea 1 , at http://www.nci.org /k-mlmox-qa.htm (updated July
13, 1999 ). From an economic perspective, MOX might not be an ideal option because uranium
Sellafield'sNuclear Complex Is at Last Going Online, NEWSWEEK INT'L , Feb . 11 , 2002 , at 44;
see also infra notes 110-15 and accompanying text . Utility companies in Japan and several other countries use European reprocessing com-
fuel. See Scott R. Helton , The Legal Problems of Spent Nuclear Fuel Disposal, 23 ENERGY
L.J. 179 , 180 - 81 ( 2002 ); Underhill, supra, at 44. Through concern about nuclear proliferation,
at 181. Nevertheless, the United States, as well as Russia, is interested in MOX use to con-
sume plutonium recovered from dismantled warheads . See Underhill, supra, at 44. 7. See infra text accompanying notes 120-28 . 8. British Nuclear Fuels plc (BNFL), Environmental Statement for the Proposed Sella-
field MOX Plant 6, I 2.7 , 2 .9 ( Oct . 1993 ) (on file with the author , courtesy of BNFL). 9. See infra notes 170-73, 190 and accompanying text. 10. United Nations Convention on the Law of the Sea, Dec. 10 , 1982 , U.N. Doc .
A/Conf.62/122 , 21 I.L.M. 1261 ( 1983 ) [hereinafter UNCLOS]. 11. Convention for the Protection of the Marine Environment of the North-East Atlan-
tic , Sept. 22 , 1992 , 32 I.L.M. 1069 [hereinafter OSPAR Convention]. 12. See Order of Dec. 3 , MOX Plant (Ir. v. U.K.), 41 I.L.M. 405 ( Int'l Trib . for the Law
of the Sea 2001 ), available at http://www.itlos.orglcase documentsl200l/documenten_
197. pdf (last visited Feb. 8 , 2004 ) [hereinafter ITLOS Provisional Measures] . ITLOS may not Trail Smelter (U.S. v . Can.) , 3 R.I.A.A. 1905 ( 1941 ). Id. at 1965; see also CHURCHILL & LowE , supra note 17, at 332 . 33. United Nations Conference on the Human Environment , Stockholm Declaration,
June 16, 1972 , princ. 21, U.N. Doc . A/CONF.48/14 & Corr. 1 ( 1972 ) [hereinafter Stockholm 54 . UNCLOS, supra note 10, art. 2 ( l ), 21 I.L.M. at 1272 . 55. Id. art. 2 ( 3 ), 21 I.L.M. at 1272 ("The sovereignty over the territorial sea is exercised
subject to this Convention ... ");id . art. 17 , 21 I.L.M. at 1273 ("Subject to this Convention,
ships of all States ...enjoy the right of innocent passage through the territorial sea" ). 56 . Id. art. 19 ( 1 ), 21 I.L.M. at 1274 . 57. Id. art. 19 (l)(h), 21 I.L.M. at 1274; see also Raul A.F. Pedrozo , Transportof Nu-
clearCargoesby Sea , 28 J. MAR . L. & COM . 207 , 223 ( 1997 ). 58. UNCLOS, supra note 10, art. 25 ( 1 ), 21 I.L.M. at 1275. Although this provision
17, at 87 . 59. Pedrozo, supra note 57, at 223- 24 . 60. UNCLOS, supra note 10, art. 22 ( 2 ), 21 I.L.M. at 1274 . 61. Id. art. 23 , 21 I.L.M. at 1274. For relevant international instruments concerning the
maritime transport of ultrahazardous materials , see supranote 47. 62. UNCLOS, supra note 10 , art. 24 (l) (a)-(b ), 21 I.L.M. at 1275 . 63. Id. art. 21 (l)(f), 21 I.L.M. at 1274 ( "The coastal State may adopt laws and regula-
tion, reduction and control of pollution thereof"); id . art. 211 ( 4 ), 21 I.L.M. at 1310 (providing
shall ... not hamper innocent passage of foreign vessels"); see also Boyle , supra note 34 , at
359 (stating that UNCLOS, in general, maintains the basic preference for coastal states' do-
for regulations to protect the marine environment ). 82. OSPAR Convention, supra note 11 , pmbl., 32 I.L.M. at 1072 ( "Recalling the rele-
of the Sea Convention and , in particular, Article 197 on global and regional cooperation for
the protection and preservation of the marine environment" ). 83 . See UNEP , supra note 39 (listing regional seas conventions and protocols ). 84. UNEP Governing Council, Goals and Principles of Environmental Impact Assess-
ment , Dec. 14 /25, UN Doc . UNEP/GCIDEC/14/25 ( 1987 ), available at http://www-
penelope.drec.unilim.fr/penelope/library/Libs/Int nal/unep. html (last visited Jan . 26 , 2004 )
BANK OPERATIONAL MANUAL: OPERATIONAL POLICIEs 4 . 01 , 2 ( 1999 ), availableat http://
wbln001 8.worldbank .org/Institutional/Manuals/OpManual.nsf/944eeaI d5fb3 1d95852564a300
60b223/9367a2a9d9daeed38525672c007d0972?OpenDocument (last visited Apr. 9 , 2004 );
HUNTER ET AL., supranote 18, at 366; Knox, supranote 33 , at 291; Okowa, supranote 33 , at
279. 85. See Kevin R. Gray , InternationalEnvironmentalImpact Assessment: Potentialfor a
Multilateral EnvironmentalAgreement , 11 COLO. J. INT'L ENVTL. L . & POL 'Y 83 , 88 ( 2000 );
see also Agenda 21, supra note 40 , 8.5(b) (urging states to introduce "comprehensive ana-
421. World Bank, supra note 84 , 15 . In a Category A project, for which a full-scale
422. Id . 16 . For the first consultation in a Category A project, the borrower must pre-
pare a summary of the objectives, description, and potential effects of the planned project . Id . 17 . For the second consultation, the borrower must provide a summary of the conclusions of
and language that are comprehensible and accessible to the consulted persons . Id . 16 .
423. Id . - 18 -19.
424. See id. 19 .
425. ADB, supra note 343, H 9- 10 . In addition, ADB provides for "120 day rule" in
at least 120 days before ADB's project appraisal . Id. T 10 . EBD adopts a similar rule but the
Policy , supra note 343, Annex 2 , 11 .4, at 18.
426. EBD Procedures, supra note 343, at 10-11 , 2 .3.4; EBD, Policy, supranote 343 , at
20, Annex 2, 110 (outlining details of EBRD's public consultation process).
427. ILC Commentaries, supra note 33, art. 13 , 10 (commenting that "public participa-
428. ILC DraftArticles, supra note 342, art. 13; see also ILC Commentaries,supra note
33, art. 13 , 1 (stating that without the second element of ascertaining the views of the public,
the purpose of Article 13 would be defeated).
429. ILC DraftArticles, supra note 342, art. 13 .
430. ILC Commentaries,supranote 33 , art. 13 , 6.
431. See supra notes 65 , 70 , 76 , 78 and accompanying text.
432. See supra note 406 and accompanying text .
433. In addition to the above environmental impact assessment instruments, a number of
June 25, 1998 , 38 I.L.M. 517 ( 1999 ); Rio Declaration, supra note 33 , princ. 10; see also Carl
mental Matters , 32 ENVTL. L. REP. 10428 ( 2002 ) (surveying extensively binding and non-
434. See NACEC , supra note 341, art. 12 . 2; see also discussion supra Part IV.B.2 . For
note 422; see also UNCLOS , supranote 10 , art. 320 , 21 I.L. M at 1329 (making authentic the