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

Michigan Journal of International Law, Dec 2004

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.

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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

Recommended Citation 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 0 This Articlesibrought to you for free and open access by the oJurnals at University of Michgian Law School Scholarship Repository. It has been accepted for inclusion in Michgian Journal of International Law by an authorized editor of University of Michgian Law School Scholarship Repository. For more information , please 1 Follow thsi and additional works at: 2 American University Washington College of Law , USA Maki Tanaka* 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. I. INTRODUCTION 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 lableat 2002 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, avai 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 reactor-grade plutonium). 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, avai 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/ wp5_2001_SellafieldEnglish.pdf (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 lableat 2002 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 www.pca-cpa.org/PDF/Ireland%20Memorial%2Part%20111.pdf, http://www.pca-cpa.org/ PDF/Ireland%20Memorial%2OPart%20V.pdf, http://www.pca-cpa.org/PDF/Ireland%20 Memorial%20Part%20V.pdf (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, IN 4.74-.102. 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 WL 10036350. 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. I. BACKGROUND 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 vast 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 fishing.26 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) (finding that 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 damages) ; 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 332. 31. 32. 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,"" ,,3 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 (1992). 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 protection'"). 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 Marine EnvironmentalProtection 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 l. (2002 ), 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 relevant industries. 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 Under UNCLOS 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 depth). 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 environment.90 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 environment. 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 practice."). 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 maritime interests."). 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 assessment documentation.398 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 confidentiality.'*' 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 commercial confidentiality. 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 assessments). 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 42 6 context. 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 decision-making processes. 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 23602164. 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 Assessment Documentation 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 jurisdiction., 44' 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, app. IV. 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. 447. Id. 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. 453. Id. 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 contingency plans). 468. See supra note 60 and accompanying text. 469. Van Dyke, supranote 41, 384-85; see also supranotes 92, 252-54 and accompanying text. 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 consultations. 81 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 cwohuelnd ithavvoelurnetqaruielysteinditinaotetidficcaotmiomnuannicdatiionnforrmegaatirodningexthcheaMngOeXinpla1n9t9.435, 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 activities.487 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 assessment reports." 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. CONCLUSION 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


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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, Michigan Journal of International Law, 2004,