The benefits derived from and the threats confronting an ecoregion with high biodiversity have potential transboundary or global dimensions.1 The South China Sea is an ecoregion of this kind. Deemed a resource of common concern, effective protection of this sea is and should be a primary concern for states that receive benefits from and cause threatening activities to it. In this discourse, creating an institutionalized decision-making process that is affecting the activities in this common resource is an agenda that besets the Association of Southeast Asian Nations [ASEAN], especially in recent years. The offshoot of the South China Sea Arbitration 2 and the growing trend of legal prudence compelling states to carry out an environmental impact assessment [EIA] provide a new perspective for evaluating the possibility of having a transboundary EIA in this maritime region.
This paper delves into the issues concerning the extent of ASEAN's obligations to carry out a transboundary EIA in treaties and customary international law that are applicable to the South China Sea. Part I of this paper contextualizes this issue by laying down the political, economic, and social dimensions of the South China Sea, as an ASEAN common resource. Part II examines ASEAN's commitments to the transboundary EIA regime under relevant multilateral environmental agreements [MEAs] and customary international law. Last, Part III evaluates the implications of the South China Sea Arbitration pronouncements for the prospect of establishing a transboundary EIA mechanism covering the South China Sea.
I. SOUTH CHINA SEA: ASEAN'S COMMON RESOURCE
For a region that is mostly deltaic, coastal, and even archipelagic, the South China Sea can be considered the largest maritime resource that the Southeast Asian nations share an interest in. Lying in the western arm of the Pacific Ocean, this rhombus-shaped basin covers an immense area of 1,423,000 square miles (3,685,000 square kilometres),3 bounded by mainland China and Taiwan in the north, the Philippines in the east, Brunei, Malaysia, and Singapore in the south, and Vietnam in the west.4 Another significant body of water adjoining the western side of the South China Sea is the Gulf of Thailand that is enveloped by the coasts of Thailand, Cambodia, Vietnam, and the east Peninsular Malaysia.5 Similarly, the Malacca and Singapore Straits, which link the coasts of Malaysia, Indonesia, and Singapore, are amongst the main gateways to the South China Sea.6 Around 125 rivers flow into the South China Sea7—the major ones from Southeast Asia include the Rajang River (Borneo), Pahang River (Malay Peninsula), and the Chao Phraya and Mekong Rivers (Indochina).8
The South China Sea is home to about 250 insular features,9 the most contested of which are the Spratly and Paracel island groups, and serves as an important geographical environment in the “history, life and culture of Southeast Asian peoples”.10 Even during the pre-colonization era, Filipinos, Vietnamese, Malays, and Chinese had been fishing in the South China Sea.11 It was a key trade route and an important channel for cultural and religious exchanges carried out between China, India, the Persian Gulf, and the Middle East, among others.12 Nevertheless, unlike the present political predicament involving territorial disputes among littoral nations (including the US),13 there was no notion of sovereignty over this sea during those ancient days.14
A. Environmental and Economic Value of the South China Sea
Beyond security concerns (due to clashes among claimant states)15 in this maritime region, and more than being a web that connects Asian ports, the South China Sea is of primary importance in an economic, and correspondingly, in an environmental sense for ASEAN. With over US$ 5trn of trade passing through the South China Sea annually, and more than half of the top ten shipping ports located in or around this area, the South China Sea is one of the busiest international shipping lanes in the world—one major factor why there is so much interest at stake not just for Asia, but for the rest of the global community.16 For ASEAN per se, intra-regional trade increased to forty-one percent in 2009 from twenty-nine percent in 1980.17 Despite the 1997 Asian financial crisis that plagued the region,18 the maritime economies of several ASEAN countries flourished. Vietnam and Thailand are among the leading seafood exporters in the world; the Philippines is one of the top ten shipbuilding economies; and six of the top twenty-five busiest container ports in the world are located in the same region.19 Even for the lone landlocked ASEAN country, the Lao People's Democratic Republic [PDR], the issues surrounding the South China Sea are crucial because of its trade relations with China.20
Additionally, there are several studies confirming the presence of huge hydrocarbon and mineral deposits in the sea bed of the South China Sea.21 The United States Geological Survey [USGS] assessed that there are 21,632 million barrels of undiscovered conventional oil, and 298,761 billion cubic feet of gas resources, particularly in the southern portion of the South China Sea.22 The mixture of untapped energy resources lying beneath this sea, the demand for oil, and the focus of ASEAN developing states to industrialize has led to the militarization of these troubled waters.23
The South China Sea also has a unique marine ecosystem. It is the “world's most diverse shallow water marine area”, where seven of nine known species of giant clams, and three of four identified species of horseshoe crabs, among others, are thriving.24 Scholars likewise traced the high diversity of corals in the Coral Triangle (a marine area which covers the waters of the Philippines, Indonesia, Timor Leste, and the Solomon Islands with a staggering number of coral species, turtles, and fish)25 from the transport of fish larvae in the South China Sea to the Coral Triangle.26
Finally, the South China Sea is linked to the significant natural heritage parks of ASEAN. The Tubbataha Reefs Natural Park (the Philippines), and Bai Tu Long National Park (Vietnam) are in the eastern and northern arms, respectively, of the South China Sea. Both the Tubbataha Reefs and Bai Tu Long are listed as ASEAN Marine Heritage Parks.27 As defined, ASEAN Heritage Parks are “protected areas of high conservation importance, preserving in total a complete spectrum of representative ecosystems of the ASEAN region”.28 Established in 1984 and later amended in 2003, the ASEAN Heritage Parks programme is in line with the target of the World Summit on Sustainable Development 2002 on the reduction of biodiversity loss.29
It is because of the foregoing political, economic, and cultural dynamics affecting the South China Sea that the “freedom of navigation and overflight” and “peace, security and stability” have been recurring agendas in ASEAN meetings.30 While the ASEAN nations have been collectively wary of the issues surrounding the South China Sea, each individual Member State, particularly those with strong claims over portions of this maritime region, continues to explore and exploit its share, which it believes to be entitled to as its sovereign right. As will be discussed in the ensuing section, this is evidenced by the major seafaring and/or maritime activities being undertaken by some ASEAN Member States.
B. Major Activities Affecting the South China Sea
There are at least three major activities in the South China Sea that have large-scale or considerable implications for the environment. The first and perhaps the most complex of these activities pertains to the energy sector; in particular, offshore oil and gas exploration and extraction either within the vicinities of or in areas that are intermediate to the South China Sea. The Philippines, for example, maintains a deep-water gas-to-power project in the Malampaya gas field, eighty kilometres from Palawan Island, and lying at the eastern border of the South China Sea.31 Malampaya is a joint undertaking of the Philippine government and multinational companies, one of which is the American-based company Chevron.32 Vietnam is another ASEAN player that has been active in oil drilling in recent years. The main gas fields in Vietnam are located in the Nam Con Son and Cuu Long basins, bordering the southwest of the South China Sea.33 Petrovietnam, a government-owned oil company, holds twenty percent of nation's oil and fifty percent of the gas production, and has joint venture agreements with international firms such as Russia's JSC Zarubezhnett, as well as with Japanese and South Korean firms.34 The other two ASEAN oil-producing and exporting nations which reserve claims over portions of the South China Sea are Malaysia and Brunei. Malaysia's oil and gas fields are scattered in three basins: Penyu, Sabah, and Sarawak—all are in the southern portion of the South China Sea.35 State-owned Petronas holds exclusive rights to energy exploration and production in Malaysia, and international energy firms have to form joint agreements with Petronas.36 Meanwhile, because of its geographical location, Brunei's offshore fields (such as the Champion Oil Field) are right at the southern part of the South China Sea.37 While Brunei's energy exploration is mainly state led, it has engaged in joint undertakings with other foreign governments such as Malaysia and Russia.38
The above facts and figures provide a glimpse of how some ASEAN nations perceive the South China Sea as an opportunity to meet the demand for energy in their respective domestic markets. In a macro-perspective, these also illustrate the favourable policy direction of most ASEAN nations when it comes to foreign investments or infusion of foreign capital in large-scale industries.
While there has been no recorded catastrophic incident in any of these oil and gas operations, as was the case of the 2010 Deepwater Horizon oil spill in the Gulf of Mexico, spills from oil and gas activities are no strangers to these Southeast Asian countries. In 2013, for instance, Petron, the largest oil refining and marketing company in the Philippines, claimed responsibility for an oil spill in Manila Bay caused by leakage from a submerged pipeline.39 In the same year, 50,000 litres of oil spilled in Thailand due to a “faulty transfer operation between a tanker and seabed pipeline” of PTT, a state-owned oil and gas company.40 Notably, the risk of transboundary pollution from pipelines (for the transport of gas from offshore installations) in the South China Sea is growing higher as more platforms are being installed by each claimant country, and yet there is no international or regional framework that governs environmental standards, and determines the rights and obligations in such a scenario.41
The second dominant activity in the South China Sea involves the fishing industry. There is a consensus among various studies that the Southeast Asian coasts are among the most biologically diverse, but at the same time overfished regions.42 In its 2012 Report, the Food and Agriculture Organization [FAO] Regional Office for Asia and the Pacific noted the continuing increase in capture fishery production in the Southeast Asian region, led by Indonesia with 5.4 million tonnes.43 The FAO also noted that the yearly catch of some Southeast Asian countries was beyond their estimated maximum sustainable yield [MSY]. For instance, Vietnam's 2004 catch was 1,724,200 tonnes, which was more than its MSY of 1,500,000 to 1,600,000 tonnes for that year.44 Because of the polarizing increase in demand for fish, on the one hand, and depleting fish stocks on the other, commentators point out that the dispute in the South China Sea is actually a war over fish, not over oil and gas.45 Studies show that the elimination of predatory fish has “profound indirect ecosystem effects” on the pelagic food web, and not just on the depleting of fish stocks.46
The third extensive activity in the South China Sea that has been accelerated by the ongoing territorial conflict relates to land reclamations and artificial island building (particularly by China) of the insular features. While the scale of China's reclamation is the most unprecedented (totalling 2,000 acres and more), other ASEAN claimant countries, such as Vietnam, the Philippines, and Malaysia, have carried out (in varying degrees) construction activities on islands and features that they occupy.47 Scholars opine that the dredging of the ocean floor in the South China Sea is damaging the corals and the aggregate marine ecology.48 As will be discussed further below, the South China Sea Arbitration meticulously explained the wide-ranging ecological repercussions of China's construction activities on the reefs in the Spratly Islands. For ASEAN littoral states, the impact can be catastrophic, given that the South China Sea is a critical source of fish larvae for the coastlines and other basins within the jurisdiction of these states.49
As shown above, the South China Sea is more than just a semi-enclosed body of water that happens to bridge the coastlines of several Southeast Asian countries. It is an immense resource from which ASEAN Member States derive, directly or indirectly, multiple uses. Nevertheless, the political, commercial, and social dynamics of this maritime region have exposed not only the abundant life and resources that dwell in it, but also the sensitivity of its marine ecosystem. The competing values and conflicting uses of ASEAN Member States, as well as the other claimant countries, have led to unsustainable practices such as oil spills, overfishing, and the destruction of coral reefs due to the reclamation of features.50 These practices raise the issue of transboundary harm within the South China Sea, and the correlative duty of the concerned states to co-operate in the conduct of an EIA and to prevent such harm.
II. THE EXTENT OF ASEAN'S COMMITMENT TO A TRANSBOUNDARY EIA REGIME
In its simplest and most accepted definition, an EIA is “a procedure for evaluating the likely impact of a proposed activity on the environment”.51 An EIA is fundamentally important to two main stakeholders. First, it provides the decision-makers with information about the possible effects to the environment of a proposed activity, which enables them to decide whether the project should proceed or how it should be regulated.52 And second, it provides a mechanism for the affected persons to participate in the decision-making process.53 Accordingly, the notion of an EIA developed from the sphere of municipal law (in the US, particularly in 1969) and has spread out in the realm of international law (as evidenced by a number of hard and soft laws), as well as in the policies of multilateral development banks (such as the World Bank, and the Asian Development Bank).54 In international environmental law, the notion of a transboundary EIA came to light in the 1970s, on the basis of non-discrimination, as found in non-binding documents adopted by the Organization for Economic Cooperation and Development [OECD], and the United Nations Environment Programme [UNEP].55 Thereafter, a number of MEAs, which have binding effect on State Parties, followed suit, such as the 1982 United Nations Convention on the Law of the Sea [UNCLOS],56 the 1991 Protocol on Environmental Protection to the Antarctic Treaty [Madrid Protocol],57 and, relevantly, the 1991 Convention on Environmental Impact Assessment in a Transboundary Context [Espoo Convention]58 and its protocol, the Protocol on Strategic Environmental Assessment [Kiev Protocol].59 Knowing an EIA's legal status and requisites is important for the purposes of determining where the ASEAN framework, if any, on EIA sits.
A. ASEAN's EIA Commitments Under MEAs
ASEAN Member States’ commitments to an EIA regime is fragmented and scattered in a diverse range of binding and non-binding instruments. As a regional block, there is no single binding agreement on a transboundary EIA in a multi-sectoral context. ASEAN's most comprehensive treaty that has a transboundary mechanism for assessment, prevention, monitoring, and response is the ASEAN Agreement on Transboundary Haze Pollution.60 However, this treaty is limited to haze pollution caused by land and/or forest fires (e.g. peat fires),61 and has no relation to marine governance. The other ASEAN environment-oriented treaty which is indirectly related to an EIA is the Agreement on the Establishment of the ASEAN Centre for Biodiversity.62 This Agreement broadly reiterated the commitment of ASEAN to conserve and sustainably use its rich biological resources. It established a centre that will facilitate co-operation and co-ordination among ASEAN nations to achieve that commitment, including the fair and equitable sharing of benefits from those resources.63
Interestingly, in 1985, the then six members of ASEAN drafted the Agreement on the Conservation of Nature and Natural Resources.64 Article 14 of this Agreement specifically requires “as far as possible” the conduct of an EIA for any proposed activity which may “significantly affect the natural environment”. The treaty, however, has not yet entered into force since not all six original signatories have signed the Agreement as required under Article 33. Moreover, it is unclear whether this provision contemplates a transboundary context. The phrase “as far as possible” likewise casts doubt on the legal character of the provision (whether it requires hard, soft, or no obligation).65
Previously, ASEAN had a Working Group on Environmental Management (which handles EIAs); however, this group has been reorganized.66 At present, environmental governance is part and parcel of the ASEAN Socio-Cultural Community (ASCC) Blueprint 2025, which provides for strategic measures on “conservation and sustainable management of biodiversity and natural resources”.67 One of these measures is the promotion of co-operation for the protection, restoration, and sustainable use of coastal and marine environments, and responding to and dealing with the “risk of pollution and threats to marine ecosystem and coastal environment, in particular in respect of ecologically sensitive areas”.68 Nevertheless, this provision of the ASCC Blueprint is generic and does not indicate any specific mechanism on how co-operation will be undertaken when responding to or dealing with threats to marine ecology—an essential component of a transboundary EIA. Further, the fact that environmental governance is subsumed by one (i.e. socio-cultural) of the three ASEAN pillars for co-operation, and is not an independent pillar, shows that environmental governance has yet to attain that level of priority as the other two pillars (political-security and economic). Other than the ASCC Blueprint, ASEAN has the Marine Water Quality Management Guidelines and Monitoring Manual, an offshoot of the Member States’ call for a more concerted regional action for the protection of ASEAN's 173,000-km coastline from land-based and sea-based activities, and for the promotion of regional co-ordination to protect its marine heritage parks.69 As in the ASCC Blueprint, these marine guidelines and manual are wanting in details on how an EIA can be integrated in the achievement of marine sustainability within the region.
From the above, it may be deduced that ASEAN's approach to a transboundary EIA (aside from haze pollution) is either in its infancy or has not gone beyond an aspirational tone, as written in its several Declarations, Resolutions, and Accords on sustainable development,70 which, in legal parlance, are mere soft laws. Nonetheless, these soft-law instruments illustrate the openness of ASEAN to frame a more comprehensive transboundary EIA, at least in the context of the South China Sea. For instance, under Section 6 (on Environmental Protection and Management) of the 2007 ASEAN Declaration on Environmental Sustainability,71 ASEAN Member States committed themselves to implement measures and enhance regional co-operation on transboundary environmental pollution. Section 8 (on Environmental Protection and Management) of the same Declaration similarly provides for sustainable management of the coastal and marine environment. This 2007 Declaration is in fact congruent with a much older instrument, the 1987 Jakarta Resolution on Sustainable Development, Section 2 of which calls for co-operative efforts focusing on “common resources and issues that affect the common well-being of the people … including … common seas”, and this would be best served, according to Section IV.C, by establishing a regional body whose task is to monitor the quality of the environment. These lay the foundation for a more comprehensive regional policy on a transboundary EIA in a common resource like the South China Sea.
In terms of other non-ASEAN based MEAs on a transboundary EIA and strategic environmental assessment, the most comprehensive ones to date are still the Espoo Convention and its Kiev Protocol. While these two MEAs are open for ratification by non-European countries, no ASEAN Member State has ratified them.72 Assuming, for the sake of argument, that ASEAN Member States will ratify the Espoo Convention, such action does not necessarily resolve the issue on overfishing in the South China Sea because such activity is not covered by the said Convention.73
This notwithstanding, it may be argued that ASEAN Member States are bound by their commitments to other MEAs which require an EIA, and are applicable in a maritime context. As far as the South China Sea is concerned, foremost of these MEAs is the UNCLOS. Except for Cambodia, which only signed it, all other nine ASEAN Member States74 have ratified this so-called “constitution of the ocean”.75 Section 4, Part XII, of this Convention pertains to a set of provisions on monitoring and environmental assessment. In particular, and as will be further discussed in the ensuing part of this paper, Article 206 requires the assessment of planned activities with potential significant and harmful effect to the marine environment, and that the state concerned shall communicate the results of the assessments based on the manner prescribed by the Convention.76 UNCLOS likewise laid down international rules on the prevention, reduction, and control of pollution of the marine environment,77 such as pollution from sea-bed activities78 (as in the case of offshore drilling), and pollution from vessels,79 among others.
Adjunct to UNCLOS is the 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,80 commonly known as the Fish Stocks Agreement. The main objective of this Agreement is to “ensure the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks”,81 an issue that is pertinent to the South China Sea because most of the pelagic fish stocks in that area are straddling fish stocks.82 The Agreement is anchored in the duty of the states to co-operate83 on, among other things, the assessment of the “impacts of fishing, other human activities and environmental factors” on both target and non-target stocks.84 The Agreement also has a range of mechanisms for co-operation (such as through a regional organization) of the State Parties.85 Nevertheless, among ASEAN nations, only three (Indonesia, the Philippines, Thailand) have ratified this Agreement,86 thereby casting doubt on the influence of this Agreement to the regional block.
The other paramount MEA is the Convention on Biological Diversity87 [CBD], given the high level of marine biodiversity in the South China Sea. The transboundary EIA provision of the CBD is reflected in Article 14(1), which states:
[e]ach Contracting Party, as far As possible and as appropriate shall: (c) [p]romote, on the basis of reciprocity, notification, exchange of information and consultation on activities under their jurisdiction or control which are likely to significantly affect adversely the biological diversity of other States or areas beyond the limits of national jurisdiction, by encouraging the conclusion of bilateral, regional or multilateral arrangements, as appropriate.88
This provision's language, however, is considered weak because the discretion rests more on the part of the state of origin on whether and how to conduct an EIA,89 and the fact that, for a transboundary EIA, the Convention only encourages the formation of bilateral, regional, or multilateral arrangements. In ASEAN's case, as mentioned earlier, there is a binding Agreement on the Establishment of the ASEAN Centre for Biodiversity, which, however, falls short on the aspect of an EIA. Nonetheless, unlike the issues on oil and gas exploration, and overfishing, it is observed that ASEAN has firmer and more transparent policy direction when it comes to biodiversity conservation.90
There are other multilateral treaties that are considered applicable to the management of the South China Sea's resources, such as the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, 1973 [MARPOL 73/78].91 Annex I of MARPOL 73/78 pertains to the Regulations for the Prevention of Pollution by Oil. Of equal importance is the Convention Concerning the Protection of the World Cultural and Natural Heritage [World Heritage Convention],92 given the presence of ASEAN heritage parks either directly or indirectly connected to the South China Sea. All ASEAN Member States are parties to these treaties.93 While these two treaties have no specific requirements on a transboundary EIA, both fundamentally relate to the precautionary principle94 and the principle of preventive action95 in which the EIA regime is anchored.96
As with all other State Parties, ASEAN Member States that ratified or acceded to these MEAs are bound by the well-entrenched principle in international law of pacta sunt servanda. Enshrined in Article 26 of the Vienna Convention on the Law of Treaties, this principle states that “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith”.97 Therefore, despite the absence of an Espoo Convention-like regime in ASEAN covering the South China Sea specifically, ASEAN Member States are obliged to comply with wide-ranging MEAs that have the elements of a transboundary EIA.
B. State Practice on Transboundary EIA: ASEAN's Obligation Under Customary International Law
Despite the ambiguity in the parameters of transboundary EIA (largely because of the absence of a unified body of international law governing this regime),98 scholars argue that “the duty to assess environmental impacts has become a part of customary law”.99 Accordingly, the Rio Declaration's100 Principle 17 (on EIA) is an attestation of the international community's support for this environmental tool.101
There are several International Court of Justice [ICJ], and International Tribunal for the Law of the Sea [ITLOS] cases that consistently point in this direction.102 Pulp Mills on the River Uruguay 103 is instructive on this point. This case involved the authorization by Uruguay and the actual construction of pulp mills on the River Uruguay, a resource shared by Uruguay and Argentina.104 On the issue of an EIA, both parties actually agreed that the conduct of an EIA is part of international practice.105 They, however, disagreed on the content, preparation, and procedure of the EIA.106 The ICJ held that the practice of undertaking an EIA has, in recent years, “gained so much acceptance among States that it may now be considered a requirement under general international law”, particularly “where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context … on a shared resource”.107
The above pronouncements were reflected and elaborated in the Construction of a Road 108 case between Costa Rica and Nicaragua. The case basically concerns the dredging and other works carried out by Nicaragua on a portion of the San Juan River, a body of water that serves as the border of these two countries,109 as well as the construction of a road by Costa Rica along the side of the river within its territory.110 On the matter pertaining to a transboundary EIA, Costa Rica alleged that Nicaragua breached its procedural obligation to carry out a transboundary EIA regarding the dredging, and to notify and consult Costa Rica.111 Meanwhile, Nicaragua accused Costa Rica of breaching its obligation under “general international law to assess the impact of the construction of the road commencing it”.112 Just like Uruguay and Argentina, both Costa Rica and Nicaragua also “broadly agree on the existence in general international law of an obligation to conduct an environmental impact assessment concerning activities carried out within a State's jurisdiction that risk causing significant harm to other States, particularly in areas or regions of shared environmental conditions”.113 While the Court found that Nicaragua's dredging activity did not pose significant transboundary harm, and thus an EIA was not required,114 the Court ruled that Costa Rica's road construction carried a risk of significant transboundary harm, and hence an EIA was required.115 On matters of EIA principle, the Court reiterated Pulp Mills on the River Uruguay in concluding that the conduct of a transboundary EIA is a requirement under general international law.116 The Court elaborated this by holding that the carrying out of a transboundary EIA is a precondition to the fulfilment of a state's “obligation to exercise due diligence in preventing significant transboundary environmental harm”.117
In the law of the sea regime, this due diligence obligation to carry out a transboundary EIA has been particularized (as a direct obligation of states) by the Tribunal in the South China Sea Arbitration between the Philippines and China. The dispute concerns “the legal basis of maritime rights and entitlements in the South China Sea, the status of certain geographic features in the South China Sea, and the lawfulness of certain actions taken by China in the South China Sea”.118 Among other submissions, the Philippines argued that Article 206 (on environmental assessment) required an EIA that “should have assessed possible effects on the marine ecosystem of the South China Sea, the corals reefs at issue, the biodiversity and sustainability of living resources there and endangered species”.119 The Philippines alleged that there is “no evidence that China carried out such an EIA and no science-based evaluation has been made public or communicated to the Philippines or to competent international organizations as required by Articles 205 and 206 of the Convention”.120 China's position was that its massive land reclamations were based on a natural simulation approach,121 and based on thorough studies, scientific assessments, and rigorous tests.122 The Tribunal held that China breached Article 206 of the UNCLOS because of its failure to communicate or provide an EIA.123 The Tribunal emphasized that:
the obligation to conduct an environmental impact assessment is a direct obligation under the Convention and a general obligation under customary international law. As such, Article 206 has been described as an essential part of a comprehensive environmental management system and as a particular application of the obligation on States, enunciated in Article 194(2).124
The foregoing cases illustrate how countries and tribunals view the role of an EIA and/or a transboundary EIA in environmental governance. These cases solidified state practice on a transboundary EIA,125 and its place in the realm of customary international law. As part of customary international law, it becomes an authoritative source of rights and obligation, which is important when it comes to enforceability under the international legal system.126
In this regard, the South China Sea Arbitration, as well as the cases laid down before that, are significant for ASEAN nations because, first, other than their treaty commitments mentioned in the preceding section, they have a general obligation to carry out a transboundary EIA for any activity that will have significant risk over the other states’ environment or over a shared resource, such as the South China Sea. Even for Cambodia, which has yet to ratify the UNCLOS, the general obligation to carry out a transboundary EIA applies, given that “customary international law is a matter of universal jurisdiction”.127 For the other nine ASEAN Member States who are all parties to the UNCLOS, there is both a general obligation under customary international law and a direct obligation to carry out a transboundary EIA. As will be further elaborated below, this means that the nine ASEAN Member States are obliged to comply with the twin requirements of carrying out an EIA, and communicating the results of such an EIA, for any activities that have potential effects on the marine environment.
Second, the above pronouncements of the international tribunal fill in the legal lacuna in treaty commitments of the ASEAN nations. For instance, the obligation to carry out a transboundary EIA under customary international law effectively strengthens the broad and unguarded discretion given to State Parties of the CBD, who are only required to carry out an EIA “as far as possible and as appropriate”.128 This is important because, as an association, ASEAN is known to be firm in upholding the principle of state sovereignty and non-interference,129 which in practice means that each Member State has unbridled discretion on the conduct of its affairs in most cases.
And third, given the above point, these international case-laws call on ASEAN Member States to align their domestic legal frameworks, if any, on an EIA to the minimum standards set forth in international law. Pulp Mills on River Uruguay illustrates this point. There, Argentina argued that Uruguay's decision to allow the construction of pulp mills was based on unsatisfactory environmental assessments vis-à-vis the Espoo Convention and the 1987 UNEP Goals and Principles of Environmental Impact Assessment.130 While the Court noted that there is no legal obligation arising from these two instruments (because both Argentina and Uruguay are not parties to the Espoo Convention, and the UNEP Goals and Principles is not a binding document), states must exercise due diligence in conducting environmental assessments under their domestic legislation.131
Since there is no unified regional policy on a transboundary EIA in ASEAN, the content and processing of an EIA rest exclusively within each ASEAN nation's institutional arrangement, based either on legislation or an ad hoc framework. An Asian Development Bank study shows that of the ten ASEAN countries, three (Brunei, Lao PDR, and Singapore) have no legislation on an EIA.132 What these countries have is a varied ad hoc system where an EIA can be required at the behest of outside lending agencies or on an in-house basis.133 In this regard, it may be argued that these domestic institutional arrangements of ASEAN countries must be aligned to the norms of customary international law, particularly in the light of the South China Sea Arbitration.
III. IMPLICATIONS OF THE SOUTH CHINA SEA ARBITRATION ON THE PROSPECT OF AN ASEAN TRANSBOUNDARY EIA
Although the South China Sea Arbitration clarified some of the vague issues in the law of the sea regime, such as the extent and limits of historic rights,134 the ruling also opened new areas of exploration in the field of politics (e.g. what the US and other powerful stakeholders will or should do next)135 and law. Among these new legal issues are the extent of the obligation to share EIA results, the duty to co-operate in that regard, and the role that ASEAN should play in the prevention and mitigation of transboundary harm in the South China Sea.
A. Extent of Obligation to Communicate EIA Results
The South China Sea Arbitration basically laid down three fundamental doctrines on shared seas, and requisites for carrying out a transboundary EIA in such areas, which are different from those in shared rivers or watercourses. First, the Tribunal explained that the obligations in Part XII of the UNCLOS (on the Protection and Preservation of the Marine Environment), which covers Article 206, apply to “all maritime areas, both inside the national jurisdiction of States and beyond it”.136 Thus, any questions on sovereignty are irrelevant insofar as these obligations are concerned.137 Second, the Tribunal noted that the general obligation to protect and preserve the marine environment under Article 192 imposes a “positive duty on State parties” to take active measures, and correlatively, a negative duty not to degrade the marine environment.138 This may apply in large-scale activities either initiated by the states or any private entities within their jurisdictions.139 And third, the Tribunal stressed that Article 192, in relation to Article 194(5), “imposes a due diligence obligation to take those measures necessary to protect and preserve rare or fragile ecosystems as well as the habitat of … endangered species”.140 This due diligence obligation requires not only the adoption of rules, but also their enforcement.141
The Tribunal then said that there was a dual requirement under Article 206 to prepare an EIA “as far as practicable”, and communicate the results of that EIA.142 Regarding the first requirement on the preparation of an EIA, the Tribunal echoed the ICJ in Construction of a Road that “simple assertions as to the existence of preliminary assessment did not equate to having adduced evidence that it actually carried out such a preliminary assessment”.143 Thus, a State Party cannot simply claim that its proposed activities are based on thorough studies and scientific assessments. There must be some proof that meet a certain standard. While the Tribunal held that it could not make a definitive finding as to whether China indeed prepared an EIA or had failed to do so, the Tribunal observed that the report and statement of China's State of Oceanic Administration (regarding the plans for the construction of the islands) fell short of the requirements of Article 206, or even China's own EIA law,144 and were far less comprehensive than those reviewed by other international courts or tribunals, or those filed in foreign construction projects.145
It is worth noting that, in its evaluation of the impact of China's construction activities in the Spratlys, the Tribunal relied on the unequivocal reports from the experts regarding the “devastating and long-lasting damage to the marine environment”,146 instead of the impact of said activities to the Philippines or other coastal states. This is a different approach compared to Construction of a Road on a shared river where the ICJ looked at the impact of the activities to the other riparian state.147
The second requirement of Article 206 on the communication of EIA results is as equally important as the first. The Tribunal relates this requirement to Article 204 (the obligation of states, directly or through competent international organizations, to observe, measure, evaluate, and analyze the risk or effects of pollution), and Article 205 (on the publication of a report through a competent organization).148 The Tribunal explained that while the first requirement on the preparation of an EIA allows a certain discretion (because of the words “reasonable” and “as far as practicable”) on the part of state concerned, the second requirement regarding “the obligation to communicate reports of the results of the assessments is absolute”.149 It requires that an “assessment in writing” be delivered to an international body.150 This China did not do, and thus led to its breach of Article 206.
These doctrinal pronouncements are significant for ASEAN, including other claimants like China and Taiwan, because of the following:
1. First, the existence of overlapping claims over the South China Sea is neither an excuse for failing to perform obligations under Part XII of the UNCLOS, since they transcend territorial boundaries, nor a bar from crafting a transboundary EIA regime in the South China Sea. The obligation under Article 192, in particular, is unqualified,151 and one which all states ought to undertake in pursuing large-scale activities.
2. Second, in a vast common resource like the South China Sea, where direct transboundary harm is less likely, evaluating the EIA study made by a certain state is focused on the impact to the marine ecosystem rather than on neighbouring coastal states, as in the case of island-building in the Spratlys.
3. And third, primacy is given to the role of regional organizations,152 like ASEAN, through which the requisite communication can be channelled. In this sense, the sharing of EIA results builds upon the Corfu Channel case's duty to warn—being an “elementary consideration of humanity”.153 Highlighting the role of international or regional organizations is also a step forward compared to Article 8 (Notification and Information) of the Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, which only contemplates the state-to-state exchange of information.154
B. Duty to Co-operate in Semi-enclosed Seas
The Tribunal in the South China Sea Arbitration went further to explain the specific duties of coastal states bordering an enclosed or semi-enclosed sea. This is in line with the Philippines’ argument that there is an obligation to consult and co-operate with relevant coastal states pursuant to Articles 197 and 123 because of the South China Sea's “characteristic regional features”. The Philippines averred that China, instead of being co-operative, was aggressive (referring to the prevention of Filipino fishermen from fishing in the disputed reefs).155 The Tribunal emphasized that “the duty to cooperate is a fundamental principle in the prevention of pollution of the marine environment”.156 It noted further that Article 197 “requires States to cooperate on a regional basis to formulate standards and practices for the protection and preservation of the marine environment”.157 Then, Article 123 specifies that “States shall endeavour to coordinate the implementation of their rights and duties with respect to the protection and preservation of the marine environment”.158 The Tribunal essentially ruled that China's lack of co-ordination is related to its failure to communicate the results of an EIA, if indeed there were any.159
It can be gleaned from the above that, for an EIA system to effectively work in a semi-enclosed sea, relevant coastal states must perform their duty to co-operate in areas that are particularly listed in Article 123.160 The duty to co-operate is not a novel concept. In fact, it exists in various parts of the UNCLOS,161 and has evolved from various international case-laws.162 The Tribunal in the South China Sea Arbitration, however, did not elucidate the standard of co-operation that is required for coastal states. It may be argued that the co-operation being required here is one that is not simply a matter of formality (where one or a few states will insist on their position), but one with the goal of achieving an equitable solution for all stakeholders, following the principle set by North Sea Continental Shelf. 163 Moreover, co-operation should extend to “all phases of planning and of implementation”, as commented by the International Law Commission.164 ASEAN, therefore, should not only be a medium for communicating and sharing EIA results. ASEAN can take a more active role in setting up concrete rules and policies for a transboundary EIA in the South China Sea. Without a comprehensive regional policy on an EIA, particularly in the South China Sea, then the duty to notify and consult will be rendered nugatory because concerned states will be at a loss on how to perform such a duty.
C. Ripeness for an ASEAN-based EIA Regime
There are observable indicators that ASEAN is ripe for a regional transboundary EIA regime. The most important of these indicators is that ASEAN knows that there are problems, and what these problems are. In its Fourth State of Environment Report, ASEAN noted that there are environmental stressors that continue to threaten coastal and marine resources, such as: “aquaculture activities along coastlines … unplanned development activities … ship and sea-based activities including oil spills, sludge disposal and mining in coastal areas, and … offshore petroleum and gas exploration”, among others.165 ASEAN knows that these problems persist despite national and regional actions.166
Another positive indicator within ASEAN, and China, is the growing support for a legally binding Code of Conduct in the South China Sea.167 Accordingly, the framework of this Code aims to build co-operation, and more importantly mutual trust, between ASEAN nations and China.168 Australia, Japan, and the US are supportive of this endeavour.169 Lobbying for this Code reflects the gradual paradigm shift from the “ASEAN Way” (value system on state sovereignty and non-interference, as discussed earlier)170 to more inclusive binding commitments. Indonesia's ratification of the Haze Agreement is an example of this shift. For a region that has a history of succumbing to colonialism, the domain of political actions, whether internal or external, is crucial in addressing transboundary environmental issues.171
During the 2017 ASEAN Summit in the Philippines, the heads of state/government of the ASEAN nations and China signed the Declaration for a Decade of Coastal and Marine Environmental Protection in the South China Sea (2017–2027), which is heavily anchored in the need for co-operation and collective action in protecting the marine ecosystem of the South China Sea.172 Worth stressing here is the commitment of ASEAN and China to “continue developing and sustaining environmentally-friendly mechanisms to mitigate … transboundary marine environmental pollution and degradation”.173 ASEAN and China also undertake to explore co-operative activities under universally recognized principles of international law, including the UNCLOS, pending settlement of their territorial disputes.174 Basically, this Declaration creates room for ASEAN and China to devise a transboundary EIA mechanism covering the South China Sea.
On another point, a transboundary EIA mechanism is not entirely alien to Southeast Asia. The management of the Mekong River Basin, a shared watercourse of Cambodia, Lao PDR, Thailand, and Vietnam, has components of a transboundary EIA scheme. In 1995, these four Southeast Asian countries signed the Agreement on the Cooperation for Sustainable Development of the Mekong River Basin.175 Although there are questions on the effectiveness of this water diplomacy platform,176 one lesson that ASEAN can take from this platform is the role of intermediaries (the Mekong River Commission, Council, and Joint Committee) in facilitating data gathering, the exchange of information, notification, and prior consultation.177
Finally, there is consistency in ASEAN's adherence to sustainable development. Article 1 (9) of the Charter of the Association of Southeast Asian Nations178 promotes “sustainable development … to ensure the protection of the region's environment, the sustainability of its natural resources, the preservation of its cultural heritage”. Article 2(g) of the same Charter states that ASEAN and its members shall act based on “enhanced consultations on matters seriously affecting the common interest of ASEAN”. In fact, ASEAN envisions that, by 2020, it will have fully established mechanisms for sustainable development.179 After all, a well-entrenched EIA can strengthen the implementation of sustainable development policies.180
The challenge, therefore, for ASEAN is how it will capitalize on these indicators to establish an acceptable transboundary EIA covering activities in the South China Sea before the tide turns against its favour, and before the legal frameworks it has established so far will be rendered meaningless because the natural resources it ought to protect and preserve have been exhausted beyond repair.
This paper has shown how the South China Sea is more than just a semi-enclosed body of water that happens to connect the coasts of Southeast Asian coastal states. Most importantly, it is a common resource from which ASEAN Member States derive multiple uses. As a region whose economy is largely maritime, there are many interests at stake in the South China Sea. On the one hand, as a regional block, ASEAN is cognizant of the importance of this sea as a trade route, a potential source of oil and natural gas, a home to a unique marine ecosystem, and a fulcrum of ASEAN heritage parks. On the other hand, driven by a statist attitude and domestic demand, the ASEAN coastal states and China, including Taiwan, undertake major activities in this area, ranging from oil and gas exploration and extraction, overfishing, island-building, and/or land reclamations to strengthen their corresponding territorial claims. These competing and conflicting values and interests raise the issue of transboundary harm within the South China Sea and the sustainability of its resources.
Based on this backdrop, this paper has argued that, despite the absence of a region-based transboundary EIA regime covering the South China Sea per se, ASEAN Member States are bound by their commitments under existing MEAs such as the UNCLOS and CBD, the EIA provisions of which are broadly applicable to the South China Sea context. As a corollary to this, ASEAN countries are parties to other related treaties, such as MARPOL 73/78, and/or the World Heritage Convention, both of which fundamentally relate to the precautionary principle, and the principle of preventive action. ASEAN states which ratified or acceded to these MEAs are, under the principle of pacta sunt servanda, required to perform their commitments in good faith.
Beyond the force and effect of these treaties, ASEAN Member States are obliged to follow customary international law. This paper joins several scholars in noting that there is a considerable amount of state practice in carrying out an EIA, especially if there is a risk that a proposed activity may have significant adverse impact in a transboundary context over a shared resource. This is evidenced by several case-laws, the leading ones being the Pulp Mills on the River Uruguay, Constructions of a Road, and, very recently, the South China Sea Arbitration. The ICJ and/or the Tribunal in these cases uniformly upheld the status of a transboundary EIA in the realm of customary international law. More specifically, the South China Sea Arbitration notes that the carrying out of an EIA is a direct obligation under the law of the sea regime, and an essential part of a comprehensive environmental management system. These pronouncements fill the void in the treaty commitments of ASEAN nations, and call on them to align their national legal and policy structures on an EIA based on general standards set forth by customary international law.
Further, this paper has argued that the South China Sea Arbitration laid down the doctrinal foundations for a transboundary EIA in this region, and the minimum requirements that ASEAN and concerned states must observe. One of these foundations is that the obligation to protect and preserve the marine environment, within the purview of the UNCLOS, is unqualified. Hence, overlapping claims in the South China Sea are irrelevant in the performance of this obligation. The Tribunal likewise explained the dual requirement of an EIA in the law of the sea. The first requirement is the preparation of the EIA, which should not be composed of mere assertions. The second requirement relates to the duty to communicate the EIA results to relevant international organizations, and the duty to co-operate in that regard. This puts primacy on the role of ASEAN, through which EIA communication can be channelled.
Given the foregoing, this paper recommends that ASEAN has to capitalize on the existing positive indicators that make it ripe to have an ASEAN-based EIA regime. These indicators include, among others, the awareness of ASEAN to the problem, the present favourable political atmosphere for a more co-operative approach in the South China Sea, and the consistent adherence of ASEAN to the attainment of sustainable development goals.