Date: November 11, 2011

Topic: Environmental Impact Assessment as a Duty under International Law: The Case Study of Pulp Mills (Argentina v. Uruguay)

Speaker: Wen-Chen Chang (Associate Professor at NTU College of Law; member of PLES)

PLES invited Associate Professor Wen-Chen Chang to this Forum for the case study of Pulp Mills, addressing the status of environmental impact assessment in international regulations and the application of related environmental law principles. PLES also invited National Taiwan University Professor, Kuei-Tien Chou of Graduate Institute of National Development, and Dean of National Taiwan University Engineering for Sustainable Environment Department, Professor Ching-Pin Tung to join the discussion.

During the discussion, Associate Professor Chang pointed out four important aspects in Pulp Mills: the distinction of procedural and substantial obligation; the importance of experts out of court; the prevention of damages and risk management; and international environmental law and the application of related principles. Associated Professor Chang pointed out that two phenomena were revealed in this case: the competition of law-making between judiciary and legislative; and the convergence of domestic and international environmental law. Associate Professor Chang specifically addressed that on the one hand, the International Court of Justice (ICJ) listed environmental impact assessment as a duty under international environmental law by using the case law without quoting ESPOO Convention. On the other hand, the ICJ had a heavy percentage in its judgment reviewing whether the pulp mills had negative impacts on the environment, instead of examining the environmental impact on the account of the experts. The ICJ did have an active attitude towards environmental care, which nevertheless also showed the arrogance of the Court.

Professor Kuei-Tien Chou started the conversation by discussing and analyzing the role of the court from the angle of social construction, and from the points of view of precautionary principle in risk management and communication. Professor Chou indicated that we must observe the role and function of the court under the social schemes of risk management and communication. Professor Tung emphasized specifically on the limitation of science. If we only look at the fact that whether there will be an impact on the environment from a scientific point of view, there will be numerous results of the assessment; and the social consensus and values will be tremendously important. Professor Tung also pointed out that Taiwanese environmental impact assessment system focuses on singular development projects, and does not assess the cumulative impacts that will arise from these projects; therefore, the conclusion might be that the development actions are not harmful to the environment.

 Associate Professor Wen-Chen Chang said, in response to Chou’s and Tung’s discussion, that the role of the court is not inflexible, given that the court is also part of the social construction. However, an aggressive and even a bit arrogant court might better manifest the values of the environment and increase response with the demand of risk communication.

Slides on Environmental Impact Assessment as an International Law Duty (Professor Wen-Chen Chang)

 Seminar Article: Environmental Impact Assessment as an International Law Duty (Professor Wen-Chen Chang)