Comments Mari KOYANO Graduate School of Law Hokkaido University 1

Institutional Perspective Significance of institutional factors in the development of regional environmental co- operation in many respects Promoting constructive dialogue between lawyers and experts from other fields of studies for enhancing environmental co-operation Contribution in making arrangements based on our views and experiences obtained from our empirical studies of existing international legal arrangements and their operations 2

Europe – East/North East Asia (1): Legal Instruments Multilateral legal agreements on various environmental sectors or issues, complemented by many bilateral agreements Substantive obligations, complemented by procedural obligations – a duty to undertake EIA/TEIA, prior notification, prior consultation, monitoring, exchange of information, or emergency notification Different patterns in legal interests between relevant States under the agreements Ensuring public involvement in the agreements Institutionalizing scientific or technological consideration under the agreements 3

Europe – East/North East Asia (2): External factors as basis of the legal instruments Roles of highly-organized institutions, such as EU, UNECE, CE Harmonization of domestic legislationin the relevant States; impacts of domestic institutional factors, legal/administrative Common views on regional environmental problems to be solved among the States Capacity of the States, financial, economical, technical and technological 4

Europe – East/North East Asia (3): External factors in the wider context Economic integration: EU EU enlargement; EU neighborhood policy Less military tension since the 1990s 5

Institutional Framework for Co- operation in East/North East Asia Legal agreements or “soft” arrangements? Substantive regulation or procedural regulation? Multilateral or bilateral? Relationship with global framework? Comprehensive approach or issue-by-issue approach? Involvement of scientific/technological experts? Public involvement: Institutional transparency? 6

Procedural approach Regulation based on procedural obligations A duty to undertake EIA/TEIA, prior notification, prior consultation, monitoring, exchange of information, or emergency notification Preventing transboundary environmental harm caused by proposed activities or in particular situations or minimizing its risk by enhancing procedural co-operation “Soft control” over sovereignty: no restriction on a right of a State to decide to authorize or undertake the proposed activities concerned 7

8 Focus on Procedural Obligations in the International Community Expectation as a tool in managing transboundary environmental risk - Increasing number of treaties formulating duties to undertake the procedures, e.g. the UN Convention on the Law of the Sea (UNCLOS) (1982), the Nuclear Safety Convention, the UNECE Espoo Convention (1991), the Baltic Sea Convention, etc. - Rio Declaration (1992) - UN ILC Draft Articles on Prevention of Transboundary Harm (2001) Litigation in international courts (1990s-) e.g. Nuclear Test case, MOX Plant case, Pulp Mills case, etc. Argument on a duty to undertake TEIA existing in customary international law e.g. ICJ judgment concerning the Pulp Mills case (2010)

Possibility of Institutionalizing Procedural Obligations Possibility of adopting a legal agreement that formulates specific duties, either bilateral or multilateral – which duty? Significance as a precedent in the region From procedural to substantive 9

A Duty to Undertake Prior Procedures Institutionalizing duties of undertaking prior procedures, i.e. TEIA, prior notification or prior consultation – unrelaistic! Cf. international workshop organized by KEI Too many disincentives at this stage e.g. - Substantial impact of the procedures on national development policy - Incompatibility with existing domestic systems: structure of national legislation, administrative institutions 10

A Duty of Monitoring or Exchange of Information Significance of monitoring and exchange of information for managing transboundary risk Necessity of regular monitoring jointly undertaken by relevant States and of sharing information among them for establishing common views on transboundary environmental problems Making existing arrangements work, re- structuring them or establishing new arrangements? Roles of scientific communities From “soft” arrangement to legal framework 11

A Duty of Emergency Notification Formulating a duty of emergency notification by legal agreements – relatively easy! Specifying the content of the duty that has been introduced by global conventions, such as UNCLOS, the IAEA Convention on Early Notification of Nuclear Accident (1986), the Convention on Biological Diversity (1992) From bilateral to multilateral No substantial cost, both internally and externally, for States 12

What We Need Framing the region: identifying the scope of geographcial coverage Identifying problems to be solved and sharing common views on the problems Analyzing various negative factors/disincentives Setting clear goals and targets Taking realistic approaches: selecting effective and practical tools; utilizing existing global/regional inter- State framework; utility and limits of legal tools Adopting effective strategies, particularly on cost coverage Thinking about environmental co-operation in the wider context, particularly in relations with matters in the field of economic development and security! 13

Thank you for yourattention! 14