3.1 The international legal basis for environmental impact assessment
EIAs have become an important cornerstone in international environmental law, and they are a formal process used to evaluate the potential environmental effects of a proposed project or activity before it is undertaken(1)Astrid Epiney, ‘Environmental Impact Assessment’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (online edn, Oxford University Press) page 2, paragraph 1. EIAs play a central role in both international environmental law and the law of the sea, providing a framework through which States assess and manage the environmental consequences of activities under their jurisdiction or control. The role of EIAs is not to directly ban environmentally risky activities, and to that extent, the obligation to conduct EIAs does not prescribe specific environmental outcomes to be achieved. The purpose of conducting EIAs is to enable informed decision-making by States, so that the potential environmental consequences of a proposed activity can be taken into consideration when the State considers whether and how to proceed with the activity. Such preventive and anticipatory functions are meant to enable State Parties to make decisions with important scientific awareness. Scholars have highlighted that the Court in the Pulp Mills case endorsed the view that conducting an “EIA is a necessary element of the general obligation of due diligence in the prevention and control of transboundary harm”(2)Alan Boyle, ‘Developments in International Law of Environmental Impact Assessment and their Relation to the Espoo Convention’ (paper presented at the UNECE Seminar on Environmental Impact Assessment, 2011), page 2. Against this background, and in the context of an analysis of flag State obligations with respect to marine biodiversity, EIAs can be understood as a manifestation of the due diligence required of flag States.
It is worth noting that EIAs have been incorporated into national law in many jurisdictions, but this national dimension of EIAs falls outside the scope of this thesis, which solely focuses on the EIA obligations that form part of international public environmental law. It is difficult to define EIAs due to their multifaceted nature, and definitions can vary depending on the specific geographical, legal, and environmental context. EIAs comprise both procedural and substantive elements, and their complexity has given rise to extensive academic discussion - as a result, it remains difficult to formulate a single, universally accepted definition of EIAs in international law(3)Neil Craik, ‘The International Law of Environmental Impact Assessment’, Chapter 4, (2008) Cambridge University Press, The International Law of Environmental Impact Assessment: Process, Substance and Integration, page 88. Neil Craik writes that “… international EIA commitments are reflective of a more general trend toward the use of a multiplicity of legal instruments that structure obligations between states, as well as involving sub-state and non-state actors”(4)Ibid n130. Craik goes on to explain how EIAs are adaptable to various contexts and highlight that EIA commitments can be found in persuasive non-binding political declarations (soft law, such as the Rio Declaration(5)Rio Declaration on Environment and Development (Rio Declaration), adopted at Rio de Janeiro, 14 June 1992.) and formally binding instruments (hard law, such as the CBD)(6)Ibid n130. Craik also points out that it is important to understand the rationale behind the adoption of the specific EIA commitments by States and highlights that the presence or absence of EIA obligations in certain regimes “is also informative of the kinds of environmental issues for which EIAs are seen to be relevant”(7)Ibid n130. This thesis therefore understands EIAs not as a uniform regulatory requirement, but as a flexible governance tool in contexts where there is environmental uncertainty and the risk of harm warrant enhanced procedural oversight.
The obligation on States to conduct EIAs originates from a combination of international treaties, customary international law, and national legislation. This chapter begins by introducing EIAs in international law, including their purpose, legal sources, and the principles underpinning their operation, before turning to the extent to which EIAs feature in relation to shipping activities. While EIAs are a well‑established tool of environmental governance, they have thus far played a relatively limited role in the regulation of shipping, notwithstanding the existence of relevant obligations under international law. Against this background, the chapter examines the international legal framework governing EIAs before focusing specifically on flag State obligations under UNCLOS and relevant IMO instruments. Particular attention is paid to the relationship between Articles 206 and 211 of UNCLOS, as well as the role of Article 94, in shaping flag State responsibilities for the protection of the marine environment in ABNJ.