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THE DUTY TO COOPERATE IN THE CUSTOMARY LAW OF ENVIRONMENTAL IMPACT ASSESSMENT

Published online by Cambridge University Press:  04 December 2019

Neil Craik
Neil Craik*
Affiliation:
Associate Professor of Law, University of Waterloo, ncraik@uwaterloo.ca.
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Abstract

This article argues that the International Court of Justice's (ICJ) account of the customary law of environmental impact assessment (EIA) is incomplete. While acknowledging the role of the harm prevention principle in formulating the customary obligation to conduct EIAs, the ICJ has ignored the duty to cooperate, notwithstanding the latter duty's equally strong standing in international environmental law. Ignoring the duty to cooperate pushes the court towards a formal and sequential understanding of EIA, which undervalues the centrality of notice and consultation in EIA. In effect, viewed through the harm prevention lens alone, EIA is largely understood in instrumental and technical terms; whereas, if the duty to cooperate is brought back in, EIA's deliberative and ‘other-regarding’ nature is more clearly seen. This, in turn, recognises the normative and political role of EIA in structuring State interactions respecting environmental disputes.

Keywords

public international lawinternational environmental lawcustomary international lawduty to cooperatecommunity interests in international lawenvironmental impact assessment
Type
Shorter Articles
Information
International & Comparative Law Quarterly , Volume 69 , Issue 1 , January 2020 , pp. 239 - 259
Copyright
Copyright © The Author (2019). Published by Cambridge University Press for the British Institute of International and Comparative Law.

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References

1 See discussion below. For a recent discussion of the status of EIA in international law, see International Law Commission (ILC) ‘Third Report on the Protection of the Atmosphere’ (25 February 2016) UN Doc A/CN.4/692, 20–33; see also Craik, N, ‘Principle 17: Environmental Impact Assessment’ in Viñuales, J (ed), The Rio Declaration on Environment and Development: A Commentary (Oxford University Press 2015) 451Google Scholar.

2 Pulp Mills on the River Uruguay (Argentina v Uruguay) (Judgment) (Pulp Mills case) [2010] ICJ Rep 14, para 204; Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica) (Merits) (Certain Activities/Construction of a Road Case) [2015] ICJ Rep 665, paras 104 and 153.

3 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion of 1 February 2011) ITLOS Reports, 10, para 145.

4 ILC, ‘Draft Articles on Prevention of Transboundary Harm from Hazardous Activities (and Commentaries)’ in ‘Report of the International Law Commission on the Work of its 53rd Session’ (23 April–1 June 2001 and 2 July–10 August 2001) UN Doc A/56/10, art 7 (including a general obligation to assess transboundary risks); see also Murase (n 1).

5 This view of EIA is often referred to as the comprehensive rationality model, as it is rooted in administrative decision-making models that focuses on expert managers gathering and analysing a wide range of salient information about a policy decision to direct their discretion. The predominant assumption is that optimal decisions are possible, with sufficient information and expertise. In relation to EIA, see discussion by Karkkainen, B, ‘Towards a Smarter NEPA: Monitoring and Managing Governments Environmental Performance’ (2002) 102 ColumLRev 903Google Scholar. See also Bartlett, R and Kurian, P, ‘The Theory of Environmental Impact Assessment: Implicit Models of Policy Making’ (1999) 27 Policy and Politics 415CrossRefGoogle Scholar.

6 There remain different understandings of the political models that may underpin EIA processes. See eg Taylor, S, Making Bureaucracies Think: The Environmental Impact Statement Strategy of Administrative Reform (Stanford University Press 1984)Google Scholar (viewing EIA as a process for facilitating political bargaining within pluralist democratic structures). EIA has also often been viewed in more deliberative terms; see Craik, N, ‘Deliberation and Legitimacy in Transnational Environmental Governance: The Case of Environmental Impact Assessment’ (2007) 38 Victoria University Wellington Law Review 381CrossRefGoogle Scholar; and Poisner, J, ‘A Civic Republican Perspective on the National Environmental Policy Act's Process for Citizen Participation’ (1996) 26 EnvLaw 53Google Scholar.

7 Certain Activities/Construction of a Road Case (n 2); as the Judgment in this case joins two claims involving different factual circumstances, where relevant, I refer to the separate disputes as the Certain Activities and Construction of a Road, respectively.

8 Pulp Mills Case (n 2).

9 Friedman, W, The Changing Structure of International Law (Columbia University Press 1964)Google Scholar; Simma, B, ‘From Bilateralism to Community Interest in International Law’ (1994) 250 Recueil des Cours 217Google Scholar. More recently the issue of community interests in international law has been explored in a collection of essays; see Benvenisti, E and Nolte, G, Community Interests Across International Law (Oxford University Press 2018)CrossRefGoogle Scholar.

10 Statute of the River Uruguay, (1975) UNTS, v 1295, No I-21425, art 41.

11 Pulp Mills Case (n 2) para 197.

12 ibid, para 204.

13 ibid, para 101 (citing Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 26, para 29).

14 ibid, para 205.

15 There is some debate over the meaning of ‘general international law’, as the term is distinct from ‘general principles of international law’ and is not otherwise mentioned as an independent source of international law under the Statute of the International Court of Justice (1945) 39 AJIL Supp 215 175, art 38. For discussion, see G Tunk, ‘Is General International Law Customary Law Only’ (1993) EJIL 534.

16 As per the Vienna Convention on the Law of Treaties (adopted 18 April 1961, entered into force 24 April 1964) 1155 UNTS 331, art 31(3)(c).

17 But see Duvic-Paoli, L-A, The Prevention Principle in International Environmental Law (Cambridge University Press 2018) 213CrossRefGoogle Scholar (noting that the wording of the Judgment implies customary law through its reference to both elements of customary law (‘practice’ and ‘acceptance’) in the sentence identifying EIA as an obligation of general international law).

18 Pulp Mills Case (n 2) para 119.

19 ibid, para 121.

20 ibid, para 105.

21 Certain Activities/Construction of a Road Case (n 2) paras 104 and 153.

22 See Bendel, J and Harrison, J, ‘Determining the Legal Nature and Content of EIAs in International Environmental Law: What Does the ICJ Decision in the Joined Costa Rica v Nicaragua/Nicaragua v Costa Rica Cases Tell Us?’ (2017) 42 Questions of International Law, Zoom-in, 13Google Scholar.

23 Certain Activities/Construction of a Road Case (n 2) para 104.

24 ibid, Donoghue, para 9.

25 Birnie, A, Boyle, P and Redgwell, C, International Law and the Environment (3rd edn, Oxford University Press 2009) 175Google Scholar.

26 Declaration of the United Nations Conference on the Human Environment (adopted 16 June 1972) (1972) 11 ILM 1416.

27 Declaration of the United Nations Conference on Environment and Development (adopted 14 June 1992) (1992) 31 ILM 874.

28 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered into force 16 November 1994) 1833 UNTS 3, art 197.

29 United Nations Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) 1760 UNTS 79, art 5.

30 Convention on the Protection of the Ozone Layer (adopted 22 March 1985, entered into force 22 September 1988) 1513 UNTS 293, art 2(2).

31 See discussion in ILC, ‘Second Report on the Protection of the Atmosphere’ (2015) UN Doc A/CN.4/681, 36–47; see also discussion in Whaling in the Antarctic (Australia v Japan, New Zealand Intervening) (Merits) [2014] ICJ Rep 226, paras 83, 220–222 and 240.

32 Lac Lanoux Arbitration, 24 ILR (1957).

33 Declaration on Environment and Development (n 27).

34 United Nations Convention on the Non-Navigational Uses of International Watercourses (adopted 21 May 1997, entered into force 17 August 2014) (1997) 36 ILM 700, arts 11–19; Agreement on the Cooperation for the Sustainable Development of the Mekong River Bain (adopted 5 April 1995) (1995) 34 ILM 865; Convention on Co-operation for the Protection and Sustainable Use of the Danube River (adopted 29 June 1994, entered into force 22 October 1998), ECOLEX TRE-001207.

35 Convention on Long-Range Transboundary Air Pollution (adopted 13 November 1979, entered into force 16 March 1998) 18 ILM 1442, art 5; Agreement between United States and Canada on Air Quality (adopted 1991 March 13) (1991) 30 ILM 676, arts V–VII.

36 Draft Articles (n 4) art 8; ILC, ‘Draft Articles on the Law of the Non-navigational Uses of International Watercourses’ (1994) 46th Session, Yearbook of the ILC, vol II, Pt Two, 89, arts 12–19; ILC, ‘Draft Articles on the Law of Transboundary Aquifers’ (2008) 60th Session, 2008, Yearbook of the ILC, vol II, Pt Two, 22, art 15.

37 Gabcikovo-Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7; Pulp Mills Case (n 2).

38 Certain Activities/Construction of a Road Case (n 2) para 106 (‘the Parties concur on the existence in general international law of an obligation to notify, and consult with, the potentially affected State in respect of activities which carry a risk of significant transboundary harm’).

39 Lac Lanoux Arbitration (n 32).

40 See eg Certain Activities/Construction of a Road Case (n 2), Donoghue, para 9.

41 Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4, 22 (discussed in Draft Articles on Transboundary Harm (n 4) art 8, commentary 3).

42 Pulp Mills (n 2) para 77.

43 Territorial Jurisdiction of the International Commission of the River Oder (Czechoslovakia, Denmark, France, Germany, Great Britain, Sweden/Poland) (1929) PCIJ Series A No 23 (referring to a ‘community of interest’).

44 Draft Articles on Transboundary Harm (n 4) art 9(2).

45 Mox Plant Case (Ireland v United Kingdom) (Provisional Measures, Order of 3 December 2001) ITLOS Reports 2001, 95, Separate Opinion of Judge Wolfrum.

46 E Benvenisti, ‘Sovereigns as Trustees of Humanity: On the Accountability of States to Foreign Stakeholders’ (2013) 107 AJIL 295, 314.

47 Pulp Mills Case (n 2) para 145.

48 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States) (Provisional Measures) [1984] ICJ Rep 292, 299.

49 Lac Lanoux Arbitration (n 32) 119.

50 For example, Convention on Environmental Impact Assessment in a Transboundary Context, Espoo Finland (25 February 1991) 30 ILM 802 (in force 14 January 1998) (Espoo Convention), art 6(2); Protocol on Environmental Protection to the Antarctic Treaty, Madrid (4 October 1991) 30 ILM 1461 (in force 14 January 1998), Annex 1, art 3(6).

51 Espoo Convention, ibid, art 3(1).

52 ibid, art 5.

53 ibid, art 6.

54 For example, Convention on Biological Diversity (n 29), art 14(1)(c); UNCLOS (n 28) art 205.

55 See eg Draft Articles on Transboundary Harm (n 4), art 2, commentary 4.

56 Espoo Convention (n 50) art 2(2).

57 ibid, art 3(7).

58 ibid, art 2(5).

59 Draft Articles on Prevention of Transboundary Harm (n 4) art 11.

60 ibid, art 11, commentary 3.

61 Mox Plant Case (n 45); Land Reclamation by Singapore in and around the Straits of Johar (Malaysia v Singapore) (Provisional Measures, Order of 8 October 2003) ITLOS Reports 2003, 10.

62 Within the EIA literature, there is a long history in EIA of proponents defining projects in a piecemeal fashion to avoid greater scrutiny or triggering more onerous requirements. See eg Earth Island Institute v US Forest Service (2003) 351 F.3d 1291 (9th Cir); Friends of the West Country Assn v Canada (Minister of Fisheries and Oceans), [2000] 2 FC 263 (Canada).

63 P André et al., Public Participation: International Best Practice Principles in Special Publication Series No 4 (International Association for Impact Assessment 2006).

64 Certain Activities/Construction of a Road Case (n 2) para 108.

65 ibid, para 168.

66 Quoted in full above at n 33.

67 Espoo Convention (n 50) art 3(1).

68 ibid, art 3(3). In the Pulp Mills Case, the duty to cooperate is facilitated by the (treaty) obligation to notify CARU at an early stage to enable an assessment of whether the proposal might cause significant harm, Pulp Mills (n 2), paras 104–105.

69 Certain Activities/Construction of a Road Case (n 2), Donoghue, para 21.

70 ibid, para 22.

71 The clearest example of this approach is found in the Draft Articles on Transboundary Harm (n 4) art 9(3) (requiring the source State to take into account the interests of the affected State where consultations fail to produce an agreed solution).

72 Certain Activities/Construction of a Road Case (n 2), Donoghue, para 23 (noting, ‘there are topics other than measures to prevent or to mitigate the risk of significant transboundary harm as to which consultations could play a role in meeting the State of origin's due diligence obligation’).

73 UNEP Res GC14/25 (1987) 14th Session endorsed by UNGA Res 42/184 (1987) GAOR 42nd Session, Principle 9.

74 Espoo Convention (n 50) art 6.

75 See Hepburn, J, ‘The Duty to Give Reasons for Administrative Decisions in International Law’ (2012) 61 ICLQ 641, 644CrossRefGoogle Scholar (‘Under this “respect rationale”, the focus of reasons is not on what their provision might help to achieve but rather on treating the subject of the decision with the appropriate respect for their personhood’).

76 United States-–Import Prohibition of Certain Shrimp and Shrimp Products (12 October 1998) WT/DS58/AB/R, paras 180–184 (discussed in ibid).

77 Kingsbury, B, Krisch, N and Stewart, R, ‘The Emergence of Global Administrative Law’ (2005) 68 Law and Contemporary Problems 15Google Scholar.

78 Natural Resources Defence Council Inc v Hodel, 865 F 2d 288, 294 (DC Cir 1988) (quoting Izaak Walton League of Americas v Marsh, 655 F 2d 346, 371 (DC Cir 1981)).

79 The common law approach is nicely captured in Baker v Canada (Minister of Citizen and Immigration), [1999] 2 SCR 817.

80 For example, Judge Lauterpacht references the responsibility of States to give reasons in relation to their failure to accept certain consequential recommendations from treaty partners: ‘the State in question, while not bound to accept the recommendation, is bound to give it due consideration in good faith. If, having regard to its own ultimate responsibility for the good government of the territory, it decides to disregard it, it is bound to explain the reasons for its decision’, Concerning Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South West Africa (Advisory Opinion) [1955] ICJ Rep 67, 119.

81 See eg Brunnée, J and Toope, S, Legitimacy and Legality in International Law: An Interactional Account (Cambridge University Press 2010)CrossRefGoogle Scholar.

82 Pulp Mills Case (n 2) para 275.

83 ibid, separate reasons of Judges Al-Khasawneh and Simma, para 26.

84 Passage through the Great Belt (Finland v Denmark) (Request for the Indication of Provisional Measures: Order) [1991] ICJ Rep 12, para 31.

85 Avena and Other Mexican Nationals (Mexico v United States of America) (Merits) [2004] ICJ Rep 12, para 119.

86 Pulp Mills on the River Uruguay (Argentina v Uruguay) (Request for the Indication of Provisional Measures: Order) [2006] ICJ Rep 113, paras 70–78.

87 Text accompanying Mox Plant case (n 45).

88 The indeterminacy associated with resolving transboundary environmental disputes and their essential political nature has long been recognised; see eg M Koskenniemi, ‘Peaceful Settlement of Environmental Disputes’ (1991) 60 Nordic Journal of International Law 73.

89 Whether international law provides for public participation in EIA processes is beyond the scope of the present article, but EIA processes are viewed as important mechanisms for implementing Principle 10 of the Rio Declaration (n 27). See eg Inter-American Court of Human Rights Advisory Opinion OC-23/17 (2017); Saramaka People v Suriname, Series C No 172 Inter-Am Ct HR (2007) para 194; see also UNHCR, ‘Report of the Independent Expert on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, John Knox – Mapping Report’ (30 December 2013) UN Doc A/HRC/25/532014 Mapping Report.