Assessing Environmental Impact and the Duty to Cooperate
Environmental Aspects of the Philippines v China Award
Tác giả: Zoe Scanlon & Robert Beckman
Asia-Pacific Journal of Ocean Law and Policy, Số 3/2018: 5 – 30
The Philippines v China Award contained a number of novel and highly progressive findings with respect to obligations for the protection of the marine environment under UNCLOS. Thus far, these elements of the decision have gone largely unexamined in the surrounding literature. This article concentrates on two specific aspects of these findings: the obligations in respect of environmental impact assessments in articles 205 and 206, and articles 197 and 123 and the duty to cooperate. It analyses the Award and identifies some concerns with the Tribunal’s reasoning in these areas. Although broadly, the Award upholds effective protections for the marine environment; this article highlights aspects of the decision in which different approaches could have been taken that would have led to stronger outcomes for the marine environment.
In conclusion, Philippines v China was undeniably a significant decision in the landscape of international environmental law and the interpretation and application of the Convention. The Tribunal broke a lot of new ground by delivering findings on numerous articles of the Convention, including on articles that had not previously been ruled on by an international dispute settlement body.
The Tribunal’s findings and reasoning on the obligation to monitor and assess were not overly controversial. Its willingness to apply a relatively low threshold and find a violation of article 206 on the basis of an absence of any evidence that any EIA had been communicated was a positive outcome and arguably, appropriate in the circumstances. This decision emphasises the significance of EIAs and reinforces the low threshold at which the requirement to undertake an EIA should be triggered under article 206. Although this case was able to offer little insight into the specific content required in EIAs under article 206, it continues to cement the growing position in international law on the importance of EIAs.
The Tribunal’s reasoning on articles 197 and 123, however, is less convincing and is difficult to reconcile with the language of those articles. In this regard the possibility of taking an alternative approach through building on the findings of previous case law and applying a duty to notify and consult or a duty to cooperate as a general principle of international law, or as an element of Part XII in light of customary international law, would have been a preferable approach, and would have been a much stronger finding in this context.
Despite the potential to take a stronger approach on some environmental aspects, on the whole, the Tribunal’s findings were progressive and upheld strong protections for the marine environment by interpreting international environmental obligations progressively. In that respect, this decision is likely to be seen as important and influential going forward. Although the decision is strictly binding only between the parties, given the breadth it covered and the influence it is likely to hold, it is bound to have an impact on international law beyond its strict legal application. Only time will tell what that impact will be, however, it can be said with some certainty that it will almost certainly have positive impacts for the marine environment.
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