Globalisation of Transboundary Environmental Impact ... - SSRN papers

Note: This is the concluding chapter of the book Theory and Practice of Transboundary Environmental Impact Assessment, Kees Bastmeijer and Timo Koivurova (eds), Brill/Martinus Nijhoff Publishers, Leiden/Boston, 2008, at 347-389. For more information on the book, see: http://www.brill.nl/product_id26104.htm Chapter 15

Conclusions: Globalisation of Transboundary Environmental Impact Assessment Kees Bastmeijer and Timo Koivurova 1.

INTRODUCTION

The aims of this book were identified in section four of the introductory chapter. The first aim – to provide information on TEIA systems and practice under these systems – has been well attained by the exciting discussions in the previous parts of the volume. The experts discuss the history and content of various TEIA systems (existing systems and systems in development) and show that in respect of most regions of the world there is a rich practice associated with TEIA. It is interesting to observe that (T)EIA is being developed worldwide between states, for human activities in areas beyond national jurisdiction and a central instrument of the environmental policies of international financial institutions and commercial banks. The other three aims of the book form the central issues of this concluding chapter. The discussions in the previous parts of this book provide the readers with the opportunity to make a comparison of TEIA systems (aim b) and we hope to contribute to this comparison through a discussion of a number of common issues and concerns in subsection 2.2. Before taking up these more specific issues, we will focus on certain general observations that reflect the worldwide development of TEIA (aim c). To this end, we outline the development of national EIA (subsection 1.1), discuss the limitations of national EIA legislation regarding transboundary environmental impact assessment, and identify the main arguments for developing TEIA systems (subsection 1.2). In view of the development of TEIA worldwide, the question whether TEIA should be considered an independent principle of international law is also dealt with (subsection 1.3).

Electronic copy available at: http://ssrn.com/abstract=1104958

2

CHAPTER 15 – BASTMEIJER & KOIVUROVA – CONCLUSIONS

A comparison of the history and content of the TEIA systems also enables a consideration of some other general matters, including the question to what extent the TEIA systems reviewed derive from national EIA systems (subsection 2.1). The possible future development of TEIA (aim d) is the central theme of the last part of this chapter (section 3). This discussion includes our views on whether a global international agreement on TEIA should be elaborated (subsection 3.1). The future development of TEIA in developing countries and countries in transition, as well as in areas beyond national jurisdiction, will also receive special attention (subsection 3.2). 1.1

Globalisation of National EIA Systems

It is generally understood that the first national EIA procedure established was the National Environmental Policy Act (NEPA) of the United States in 1969. Thereafter, EIA first spread to the Anglo-American countries of Canada and Australia, then to Europe and, more recently, to a variety of developing countries.1 In 1999, ‘around 200 systems for environmental impact assessment [had] been introduced in countries, states and international organisations around the world,’2 and today the number has most likely increased. One reason for this trend is that EIA is widely regarded as one of the most important instruments for implementing the goal of sustainable development.3 Furthermore, as shown in this book, international normative developments have played a role in placing pressure on states to create national EIA legislation and in enhancing the quality of such legislation and its implementation. Examples include recommendations by inter-governmental organisations (IGOs), as well as the normative preconditions laid down by the multilateral development banks and commercial banks that have signed the Equator Principles. This spread of national EIA as an environmental policy tool around the globe is clearly an important development. Since most states nowadays have such systems in operation, many potentially environmentally harmful activities taking place in almost all terrestrial areas (which fall under the sovereignty of states) and maritime areas (Exclusive Economic Zones and 1

2 3

For a review of the history of EIA procedures, see Alan Gilpin, Environmental Impact Assessment (EIA): Cutting Edge for the Twenty-First Century (Cambridge: Cambridge University Press, 1995), at 2-4; William Sheate, ‘Environmental Impact Assessment: Law and Policy’ in Making an Impact (Regent Communications: Cameron, 1996), at 1622; and Owen D. Harrop & Ashley J. Nixon, Environmental Assessment in Practice (London: Routledge Environmental Management Series, 1999), at 2-7. Owen D. Harrop & Ashley J. Nixon, Environmental Assessment, supra note 1, at p. 2. See, e.g., Philippe Sands, ‘International Law in the Field of Sustainable Development’, 64 British Yearbook of International Law (1994), at 357-358; and Alan Gilpin, Environmental Impact Assessment, supra note 1, at 9-10.



3

the continental shelf) are subjected to a rigorous analysis of their environmental impacts and public participation procedures. This is important for preventing or limiting significant environmental impacts within these areas. Since many global problems are caused by diffuse pollution and the accumulation of pollution from a large number of activities, national EIA systems may also collectively contribute to the mitigation of regional and/or global impacts, such as those caused by climate change. 1.2

Limitations of National EIA Legislation and Arguments for an International TEIA System

TEIA between states Although the global development of national EIA systems should be celebrated for promoting sustainable development, we must address the question to what extent national EIA systems require the assessment of potential transboundary impacts of proposed activities. Certain national legislation on EIA indeed requires proponents of activities subject to that legislation to assess potential environmental impacts across national borders. The discussions in Part I of the book include various examples of such national systems, 4 and others are dealt with in the literature.5 It has also been argued that this application of national EIA legislation to transboundary impacts complies with the ‘non-discrimination principle’6 whereby foreign stakeholders should have a right to participate in the EIA procedure of the origin state on an equal footing with domestic stakeholders. However, the conduct of TEIA through the application of national EIA legislation, which is not based on an international agreement or guidelines, may also have certain weaknesses. If TEIA consists of applying conventional EIA legislation, limitations in the scope of national EIA may also limit the scope of TEIA. For instance, as discussed in Chapter 5, the conduct of TEIA in North America – the application of Canadian and US national EIA legislation – results in a situation where TEIA is only applied to activities subject to federal jurisdiction. Differences between the national EIA legislation of two states that share a border may also create unequal application of TEIA between the countries. In view of the limitations of national legislation, it is interesting to observe – as the discussions in this book illustrate – that in many parts of the 4 5

6

See Chapters 5 and 6. See also John H. Knox, ‘Myth and Reality’, infra note 6, at 300. See P. W. Birnie and A. E. Boyle, International Law and the Environment (Oxford: Oxford University Press, 2002), at 132-133, in particular the list in endnote 404 to Chapter 3. John H. Knox, ‘Myth and Reality of Transboundary Environmental Impact Assessment’, 96 American Journal of International Law (2002), at 300.


4


world, states have decided to cooperate to develop guidelines or agreements on transboundary EIA and not to rely solely on the application of national EIA to address transboundary environmental issues. Such TEIA systems may have various advantages compared to domestic approaches. To begin with, TEIA agreements may create more clarity on the procedural pillar of the no-harm principle.7 As noted by Craik: the harm principle says very little about the modalities of its implementation. […] [I]mportant procedural questions regarding what activities are subject to this obligation, which agency or official within a state is to be notified, the content of the notification, the amount of consultation required, and the remedies available where these obligations are not met, are left principally to the discretion of individual states. In the absence of clarity on these issues, the customary rules lose their effectiveness.8

International agreements may constitute an effective instrument for answering such questions. This has a harmonising effect on the interpretation of ‘TEIA’ requirements deriving from international law principles. Increased clarity on these requirements strengthens their implementation. In respect of this harmonising effect, it could be argued that the process of making international agreements on TEIA filters out limitations of national EIA systems. For instance, the above-mentioned limitation of national EIA legislation in North America whereby TEIA applies only to federal activities might not be codified in a future North American TEIA agreement. However, this would require a certain willingness on the part of states to distance themselves from their domestic EIA systems to create sufficient space for developing a TEIA system;9 for North America this appears to be a concern: ‘The central limitation to coordination [...] is the reticence by all three countries to make significant adjustments to their domestic EIA programs.’10 7

8 9

10

The no-harm (or due diligence) principle – as formulated in the 1972 Stockholm (Principle 21) and 1992 Rio Declarations (Principle 2) – reads: ‘States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental (and developmental) policies and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond national jurisdiction.’ Chapter 5(1). This is an important notion in international (environmental) law in general: when limitations of the domestic systems set the framework for negotiating international agreements, these agreements may be weakened substantially. In fact, this might result in a TEIA system that is even weaker than the ‘transboundary application’ of the domestic EIA system would be, for the TEIA system may ‘collate’ the weaker aspects of various contracting parties. Chapter 5(5).


5

TEIA may also be of great importance in preventing conflicts between states. Certainly, discussions on the potential impacts of a project on the environment in another state may be a sensitive topic; yet such a debate may prevent more serious conflicts at a later stage, for instance, when the project is being carried out. A recent example of such a conflict is the ICJ case of Argentina against Uruguay in the so-called Pulp Mills Case. The large-scale pulp mill, which is still under construction in the Uruguayan town of Fray Bentos, is perceived by Argentina as an environmental threat to the Uruguay River.11 Although consultation could begin on the basis of domestic EIA legislation, an international TEIA agreement might establish better overall assurance that the potentially affected state will be involved in the EIA procedure in a timely manner. This dimension of ‘conflict prevention’ in TEIA is also reflected in the EIA practice of the European Bank for Reconstruction and Development (EBRD). As noted in Chapter 13, on a number of occasions the EBRD has looked at projects where the technical data have shown that the likelihood of a transboundary impact is extremely low or nil; nevertheless, neighbouring countries and groups within these countries believed that they would be impacted by the project, and wanted an opportunity to comment on it under the Espoo Convention. In these cases, the EBRD consulted with the Espoo Secretariat to discuss the issue and for the most part treated these projects in line with the principles of the Convention, the rationale being that if the neighbouring country and public were given evidence that they would not be affected, they would have a more negative reaction than was necessary. It should be noted, however, that TEIA deals not only with typical situations of potential transboundary impacts from a proposed activity in the origin state on the affected state, but also with activities that cross borders, such as roads and railways, and that can have transboundary impacts. In such cases, as discussed in Chapter 2, it is not clear how the provisions of the Espoo Convention apply. In certain situations, countries have set up bodies and prepared a joint EIA. An additional possible advantage of developing a TEIA system – as compared to relying on domestic EIA legislation for projects with likely transboundary impacts – is that TEIA may create more certainty over time. If there is no international treaty or other normative instrument regulating TEIA, the evaluation of transboundary impacts is based on national EIA systems, which are subject to change as a result of both national legislative reforms and reviews of policy regarding how they are applied in practice. 11

See the ICJ website, at (accessed 26 April 2007).

6


For instance, in Chapter 6 it was noted that in Central America, ‘governments are constantly changing, ideologically and in terms of their staff and policies, which emphasizes the need to have a legally binding document to sustain the EIA tool, both nationally and in relation to transboundary impacts.’12 This role of TEIA as a guarantor of certainty also applies to other developing regions, but undeniably to developed countries as well. For instance, in the Netherlands in the last few years, deregulation of environmental law has been a central policy focus at all levels of government, and the existence of the Espoo Convention and EC directives on EIA and SEA have constituted clear ‘boundaries’ on the extent to which the deregulation process could proceed. An advantage more directly related to the aim of environmental protection is that a TEIA system may better ensure that an EIA takes into account environmental effects across borders. In other words, TEIA is not merely one possible component of a domestic EIA system; it has a separate ‘status’, being based on an international agreement to take transboundary environmental impacts into account. However, it should be acknowledged that the above arguments for taking an international approach to TEIA instead of implementing TEIA through national EIA do not apply to all situations; rather the validity of the arguments depends on various factors, such as the level of ambition of existing national EIA legislation, whether there are substantial differences between the national EIA legislation of neighbouring countries, and the political will of neighbouring governments to consult and apply EIA jointly. The advantages identified above may be vitiated or even lost due to choices made in shaping a TEIA system. For instance, the harmonising effect of one of the most advanced TEIA treaties, the Espoo Convention, should not be overestimated. In fact, this treaty expects the states parties primarily to establish a national EIA procedure with public participation, essentially meaning that each TEIA will be carried out by extending the national EIA to foreign actors and foreign impacts. This characteristic of the Convention has often been cited in the literature. For instance, according to Knox, ‘the Espoo Convention reflects and extends its signatories’ pre-existing EIA laws.’13 Furthermore, some countries have a federal structure that effectively divides jurisdiction in EIA between the federal and lower levels and thus may face problems in implementing TEIA. For instance, when Canada ratified the Espoo Convention on 13 May 1998, it did so with a reservation:

12 13

Chapter 6(6). John H. Knox, ‘Myth and Reality of Transboundary Environmental Impact Assessment’, supra note 6, at 302.


7

Inasmuch as under the Canadian constitutional system legislative jurisdiction in respect of environmental assessment is divided between the provinces and the federal government, the Government of Canada in ratifying this Convention, makes a reservation in respect of proposed activities (as defined in this Convention) that fall outside of federal legislative jurisdiction exercised in respect of environmental assessment.14

This reservation prompted objections from many contracting states. The objecting states were of the opinion that such a reservation is contrary to the well-established rule of customary international law and the Vienna Convention on the Law of Treaties whereby reservations contrary to the object and purpose of the treaty are not permitted.15 Even if a TEIA is regulated via an international treaty between states, for the most part the significant impacts on the areas outside of a state’s jurisdiction need not be examined; not even the main convention in this

14 15

Information obtained from the United Nations Treaty Series on 11 June 2007. For instance, ‘In the view of the Government of Finland the general reservation made by the Government of Canada does not adequately clarify to which extent Canada considers itself bound by the Convention. It is of fundamental importance that States are prepared to undertake legislative changes necessary to comply with their obligations under their treaties. Furthermore, according to Article 19 of the Vienna Convention on the Law of Treaties of 23 May 1969 as well as customary international law a reservation incompatible with the object and purpose of a treaty shall not be permitted. Accordingly, Finland objects to the general reservation of Canada as not compatible with the object and purpose of the [Convention].’ The Finnish communication was submitted on 28 May 1999. Other states also objected to the reservation made by Canada: Canada, Sweden (26 May 1999) Luxembourg (20 August 1999), Italy (1 June 1999), Norway (28 July 1999), France (15 June 2001), Ireland (25 July 2002). On 21 January 2000, the SecretaryGeneral received from Canada the following communication: ‘The Government of Canada notes that some States have formulated objections to the reservation of the Government of Canada to the Espoo Convention. The Government of Canada wishes to reaffirm its view that a reservation in respect of proposed activities (as defined in the Convention) that fall outside federal legislative jurisdiction exercised in respect of environmental assessment is compatible with the object and purpose of the Convention and is thus admissible. In reaffirming its position on this matter, the Government of Canada refers to the negotiating history of the Convention and specifically to the sixth and final meeting of the Working Group to elaborate a draft Convention. At that meeting, the states present agreed to delete a draft article that would have prohibited all reservations to the Convention. It was and remains Canada' s understanding that the agreement to delete the prohibition on reservations was linked directly with a further decision not to include a "federal clause" within the Convention. Canada further wishes to state that Canada' s reservation to the Espoo Convention is an integral part of Canada' s ratification of the Convention and is not severable therefrom. Canada can only accept treaty relations with other states on the basis of the reservation as formulated and in conformity with Article 21 of the Vienna Convention on the Law of Treaties.’ Information obtained from the United Nations Treaty Series on 11 June 2007.

8


field, the Espoo Convention, imposes such a requirement.16 A positive exception in this respect is the UNCLOS, which in its Article 206 provides at least some guidance to the effect that impacts on the marine environment should be studied. 17 TEIA for activities in areas beyond the borders of the state The limitations of national legislation vis-à-vis TEIA and the importance of international cooperation are more apparent in the case of areas beyond national jurisdiction. The globalisation of the economy, the scarcity of certain natural resources, technological innovation and other factors explain why governments and industry are increasingly interested in exploring the potential of the global commons. Without international cooperation and agreements, state governments have limited possibilities to regulate human activities in these areas. This notion of the limitations of the territorial state was already expressed in the Stockholm Declaration of 1972: A growing class of environmental problems, because they are regional or global in extent or because they affect the common international realm, will require extensive cooperation among nations and action by international organizations in the common interest.18

That this has proven very true and relevant throughout the last few decades is shown by many developments in international environmental law and policy. Examples include the international agreements on measures to limit human influence on global warming and the international action taken to stop the decrease of the world’s biological diversity. The limitations of the national state governments and of their power to regulate human activities are also being acknowledged as transboundary environmental challenges, an example being the environmental impacts that may be caused by multinational companies, which can nowadays transfer 16

17

18

Art. 1(viii) of the Espoo Convention defines ‘Transboundary impact’ as ‘any impact, not exclusively of a global nature, within an area under the jurisdiction of a Party caused by a proposed activity the physical origin of which is situated wholly or in part within the area under the jurisdiction of another Party.’ United Nations Convention on the Law of the Sea (Art. 206) speaks generally only of the marine environment, not of the areas under the jurisdiction of other states: ‘When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results of such assessments in the manner provided in Article 205.’ Para. 7 of the Stockholm Declaration, available on the website of UNEP, at (accessed 21 November 2006).


9

their activities anywhere in the world with relative ease. State governments are increasingly becoming aware that the globalisation of economic activities and the complexity of environmental issues require cooperation with industry and other stakeholders, such as interest groups, to address global environmental challenges. This is illustrated by various developments, such as the increasing attention being paid to the corporate social responsibility of industry and the development of partnerships between governments and industry and/or interest groups. The adoption of environmental policy by corporations – including the use of the instrument of EIA for big international projects – also reflects this development. 1.3

Status of TEIA under International Law

The introductory chapter of this book noted that TEIA is broadly recognised as an important procedural component of the no-harm principle. In view of the development of TEIA worldwide and the close relationship between TEIA and other principles of international environmental law, the question arises whether TEIA is part of the corpus of international law. Some scholars have suggested that TEIA and other procedural principles have in fact become part of general international law. This view is an interesting one where the prevention of environmental impacts is concerned. It has been noted in the literature that the no-harm principle ‘is usually invoked as a reactive measure’ and ‘because the imposition of responsibility after the fact fails to prevent the injury in the first place, many commentators posit that the correct approach is to impose procedural obligations on states before the environmental damage occurs.’19 Although the preventive nature of the no-harm principle itself has also been emphasised in the literature,20 the acknowledgement that TEIA is a separate principle of international law could underscore the preventive approach further. Moreover, this would have legal consequences: while discussions on due diligence often take place in situations where significant environmental impacts have already occurred, accepting TEIA as a separate component of international environmental law would mean that a potentially affected state could, in principle, react (e.g. via countermeasures) already when, for example, the origin state had failed to notify it that the proposed activity was likely to result in significant transboundary impacts. 19

20

B. Popiel, ‘From Customary Law to Environmental Impact Assessment: A New Approach to Avoiding Transboundary Environmental Damage Between Canada and the United States’, 22 Boston College Environmental Affairs Law Review (1994-1995), at 459. P. W. Birnie and A. E. Boyle, International Law and the Environment, supra note 5, at 111-112.

10


However, it is doubtful whether TEIA may be considered a separate principle of international environmental law. Although this book shows a variety of state practice in relation to TEIA, it also illustrates that TEIA treaties and other normative instruments have received comparatively little attention outside of the developed world; this makes it more difficult to argue that TEIA has become part of the corpus of international law. On the other hand, since the beginning of the 1980s some authors21 and even expert bodies, such as the International Law Association (ILA), have argued that the duties of prior notification and prior consultations are independent norms of international law and the duty of transboundary impact assessment is a consequence of these procedural and substantive duties.22 TEIA has also been invoked before the ICJ, particularly in the 1995 dispute between New Zealand and France concerning the legality of French underground nuclear tests in the South Pacific.23 Yet, valid arguments have been presented criticising the ILA’s stance. Okowa, for instance, argues that the ILA’s conclusions are based to an excessive degree on international resolutions and international treaties and that they fail to take into account the opinio juris of states. She concludes on these grounds that these preventive duties are not independent obligations in customary international law.24 Moreover, she 21

22

23

24

Alan Boyle, ‘Nuclear Energy and International Law: An Environmental Perspective’, 60 British Yearbook of International Law (1989), at 257-313. Günther Handl ‘Environmental Security and Global Change: The Challenge to International Law’ in W. Lang, H. Neuhold and K. Zemanek (eds), Environmental Protection and International Law (London: Graham & Trotman, 1991), at 59-87. These were codified as the ILA Montreal Rules of International Law Applicable to Transfrontier Pollution, Art. 5 of which carries special importance in this context: ‘(1) States planning to carry out activities which might entail a significant risk of transfrontier pollution shall give early notice to States likely to be affected […] (2) In order to appraise whether a planned activity implies a significant risk of transfrontier pollution, States should make environmental assessment before carrying out such activities.’ See ILA Montreal Rules of International Law Applicable to Transfrontier Pollution, Legal Aspects of the Conservation of the Environment (Resolution No. 2 1982) in Harald Hohmann (ed.), Basic Documents of International Law (London: Graham & Trotman 1992). Vol. 1, at 249-250. Interestingly, the ICJ noted in the Request for an Examination of the Situation in Accordance with Para. 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, I.C.J. Reports 1995, p. 288, at para. 64: ‘Whereas moreover the present Order is without prejudice to the obligations of States to respect and protect the natural environment, obligations to which both New Zealand and France have in the present instance reaffirmed their commitment.’ The ICJ referred to the principles of precaution and to the duty to evaluate environmental impacts as the duties to which France and New Zealand had reaffirmed their commitment. See also the separate opinion by the then Vice-President of the ICJ in Gabcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7, at 88-119. See, Phoebe N. Okowa, ‘Procedural Obligations in International Environmental Agreements’, 67 British Yearbook of International Law (1996), at 275-336 and Phoebe


11

makes a distinction between preventive procedural rules in general and the procedural law duty to warn another state in emergency situations: only the latter obligation has, in her view, entered the body of international law. 25 However, even if one accepts Okowa’s view, preventive duties are not devoid of legal significance: [i]n the absence of mandatory standards the procedural rules are useful criteria for determining whether or not a state has complied with its due diligence obligations under customary law. A state that has failed to undertake environmental impact assessment, or enter into consultations with affected states may be precluded from asserting that the harm did not occur for want of diligence. Moreover, it has been noted that where a state fails to respond to a notification, it too may be taken to have acquiesced in the conduct of the activity and may be estopped from asserting that the activities as carried out are not compatible with its interests. 26

Thus, even though it is still a matter of debate whether TEIA can be seen as an independent principle of international law, the discussions in this book make it clear that TEIA is developing worldwide, even in respect of the global commons. It is likely that TEIA will also receive increasing attention in the developing world (see section 3 below), which in time may mean that TEIA will mature into a principle of general international law. Until that moment, the globalisation of TEIA clearly strengthens its position and importance under international environmental law, particularly its value as one of the components of the no-harm principle.

25 26

N. Okowa, State Responsibility for Transboundary Air Pollution in International Law (Oxford: Oxford University Press, 2000). See also Rene Lefeber, Transboundary Environmental Interference and the Origin of State Liability (The Hague/London/New York: Kluwer Law International, 1999), at 25-41. Nordström Nina, ‘The State Duty to Inform on Transboundary Environmental Accident’, in research project ‘Legal Responses to Environmental Harm’ (Published by Åbo Akademi, No. 25, Rättsvetenskapliga Institutionen Ser. A: 467, 1996). Phoebe N. Okowa, ‘Procedural Obligations’, supra note 24, at 330-332. Ibid., at 336. See also Phoebe N. Okowa, State Responsibility for Transboundary Air Pollution in International Law, supra note 24, at 169-170.


12

2. 2.1

WORLDWIDE DEVELOPMENT OF TEIA: A COMPARATIVE ANALYSIS General Observations

TEIA systems in different stages of development The discussions in this book show that TEIA is developing worldwide and that the TEIA systems in the various regions of the world are in different stages of development. The system established under the Espoo Convention, the EIA system for the Antarctic, and the systems adopted by the World Bank and the EBRD were approved some years ago; the implementation of these agreements and policies is a focus of international interest, although the systems as such may undergo revision. The systems are very much ‘alive’, and numerous projects have been subjected to the TEIA provisions. For instance, the Espoo Convention has already given rise to quite many TEIA procedures,27 even very ambitious ones, e.g., the current plan to apply the Convention to a proposed natural gas pipeline from Russia to Germany under the Baltic Sea. Yet, it remains fair to say that more capacity building is required among those who conduct EIA procedures if cases where transboundary impacts are likely to occur are to undergo TEIA procedures. It is evident that with TEIA being such a recent policy tool – the first real TEIA convention only entered into force in 1997 – it will still take some time for TEIA to become a standard practice in environmental policy and law. Other existing systems, such as the one established under the Nordic Environmental Protection Convention (NEPC), have been in force for quite some time and have already induced a fair amount of state practice, albeit limited to rather simple communication procedures, as illustrated in Chapter 4. As was argued in that chapter, what makes the procedures based on the NEPC rather rudimentary is that the communication has been very limited in terms of participants and extent. Other systems discussed in the book refer to EIA agreements or policies that have only recently been established, for instance, the regulations on possible future mining of polymetallic nodules in the deep seabed area and the EIA provisions of the Equator Principles, adopted by commercial banks. Practice under these instruments is limited and the relevant stakeholders are putting much effort into implementation and first evaluations of the provisions. In other regions, TEIA systems are 27

For a recent overview of the quite extensive application of the Convention, see the UNECE website (Review of Implementation 2006, draft of 17 April 2007, at 34-46), at (accessed 25 April 2007).


13

not yet developed, but TEIA practice has been developed to a certain degree on the basis of application of national EIA systems. Examples include TEIA in North America and EIA for space activities. The discussions on the Bay of Bengal are illustrative of the numerous regions in this world where transboundary impacts by human activities are a major concern but where TEIA has not yet been established – either under international agreements or guidelines or under national EIA legislation. In sum, the discussions in this book represent all developmental stages of TEIA. These differences in stage of development make a comparison of the various established and developing systems difficult. An additional complicating factor is that a number of these systems are in one way or another related to the primary convention in the field, the Espoo Convention. The Convention, in its field of operation, has replaced the NEPC, has been implemented in the EU countries (the EC is a party to the Convention), has very much influenced further work on TEIA in the UN Economic Commission for Europe – especially the Convention on the Transboundary Effects of Industrial Accidents28 – and has even reached North America with Canada’s becoming a member. The Convention has also influenced the drafting of TEIA in shared natural resource regimes, e.g., the making of the Guidelines and Protocol on EIA in the Caspian Sea region as well as the Guidelines for Environmental Impact Assessment in the Arctic. That the Espoo Convention prevails over all others underscores how it has been implemented or how it has influenced other TEIA systems, rather than constituting a comparison of TEIA systems. However, the difficulties in comparing the various TEIA systems are not too serious. For instance, it is still useful to assess whether the more developed systems might reveal some of the salient challenges and solutions to those that are still in their early stage of evolvement. In addition, TEIA systems for areas subject to territorial jurisdiction and systems for the global commons may have something to learn from each other. Moreover, the nonstate TEIA systems developed by financial institutions may well provide inspiration for the systems based on guidelines and agreements developed by 28

The Convention on the Transboundary Effects of Industrial Accidents contains in its Art. 4 and Annex III a TEIA procedure almost identical to that of the Espoo Convention. It also contains an explicit provision, in its Art. 4(4), for situations in which both the Espoo Convention and the Transboundary Effects Convention are applicable: ‘When a hazardous activity is subject to an environmental impact assessment in accordance with the Convention on Environmental Impact Assessment in a Transboundary Context and that assessment includes an evaluation of the transboundary effects of industrial accidents from the hazardous activity which is performed in conformity with the terms of this Convention, the final decision taken for the purposes of the Convention on Environmental Impact Assessment in a Transboundary Context shall fulfil the relevant requirements of this Convention.’

14


state governments and vice versa. A number of common issues and lessons learned are discussed below (subsection 2.2). Soft law and hard law approaches One of the issues discussed throughout the book is the choice of TEIA instrument. Soft-law instruments have certainly been crucial in encouraging states to adopt EIA as a national policy tool in the first place, but they have also played a role in regional TEIA processes. One clear function they have had is to prompt the parties to articulate the direction of their TEIA cooperation even if they are not yet able to reach agreement on a legally binding treaty. This has been the case in the Antarctic and in the Caspian Sea, with both processes first testing soft-law instruments and then adopting the TEIA procedures in a legally binding form. A similar approach is advocated by Craik in Chapter 5 for North America, which faces the difficulties of three states with very complex federal government structures and different kinds of EIA systems. A short-term solution proposed by the author is to conclude a framework agreement, which need not be legally binding, to address the concerns related to reciprocity between the states. According to the Craik, such an approach may provide for uniformity and reciprocity with respect to TEIA at the level of principles while at the same time recognising the need for more contextspecific and agency-driven solutions at the level of implementation. Yet, at the end of the day, the best solution for creating a TEIA system appears to be legally binding agreements, because they bring in the needed stability to offset the ongoing changes at the national level. This is indicated by the analysis of the Guidelines on EIA in the Arctic. As was discussed in Chapter 8, the Guidelines have failed outright in influencing EIA practice in the region. One might even argue that this example shows that soft-law regulation in this area entails dangers of its own, for at the moment the Arctic states can argue that they have EIA guidelines in place although their practical effect is meaningless. The Arctic Guidelines also show that the development from guidelines to stricter forms of regulation is not automatic. It is also important to realise that while soft-law recommendations or guidelines normally form a testing ground for treaties on TEIA, they are also often used in specifying the modalities of such treaties. Many times TEIA treaties provide general regulation on the basic obligations and rights, the modalities which can be complemented by softer forms of regulation. This has taken place, for example, in the case of the Espoo Convention, where the Meetings of the Parties and subsidiary bodies have tried to provide guidelines on how the Espoo Convention should be implemented and applied. A similar idea is suggested for the Caspian Sea in Chapter 4, where the authors take the view that it is perhaps better to leave some controversial


15

issues – such as how the consultations between parties are organised – to be addressed not by the EIA protocol itself but by more flexible forms of regulation. These observations have particular relevance in designing and managing state-produced TEIA systems, whether these apply between states, to shared natural resources or to the global commons. On many occasions, self-regulation by the Equator banks and policies by the multilateral development banks complement the state-produced TEIA systems. The treaty framework affords the various stakeholders – especially companies – the required legal certainty, although the requirements of the lenders may ultimately even exceed those of the treaty. The extent to which TEIA systems derive from national EIA Systems The discussions in Part I confirm that certain TEIA systems between states have been developed on the basis of knowledge of and experience with national EIA systems. However, the key question is whether it is still correct to say that TEIA derives from national EIA. As TEIA further develops, it is most likely that treaties, practical experiences with them, and practice under the EIA policy of banks will become increasingly important for the development of new TEIA systems in various parts of the world. The discussions in this book indicate this trend clearly. For instance, the system under development for the Caspian Sea region is based in part on the national EIA systems of the countries involved, but also on the evolving regime of the Espoo Convention. It may also be concluded that national EIA is not the only basis for developing EIA for activities in areas beyond national jurisdiction: although national EIA systems still constitute the main framework for conducting EIA for space activities, separate regimes have been developed for the deep seabed and Antarctica that may not simply be regarded as systems that extend the scope of application of national EIA. For instance, the Antarctic EIA system has various characteristics that go beyond national EIA, such as the distinction between preliminary, initial and comprehensive evaluations and the obligation of state governments to provide the Committee for Environmental Protection (CEP) and Antarctic Treaty Consultative Meeting (ATCM) with the opportunity to discuss all draft Comprehensive Environmental Evaluations (CEEs). Nevertheless, considerations of national law and policy, as well as cultural factors still influence the process and content of new TEIA systems, such as that being developed for the Caspian Sea region. Furthermore, when implementing a TEIA system in the domestic legal order, the agreements that have been made must be shaped so that they fit in well with the existing national system. For instance, when implementing Annex I (EIA) to the

16


Antarctic Environmental Protocol, certain state parties enacted specific Antarctic legislation, including EIA provisions for Antarctic activities; others implemented the EIA obligations by broadening the scope of application of their existing general EIA legislation to include activities in the Antarctic. It may be concluded that TEIA today does not simply derive from national EIA. Although this may be true for certain systems, e.g., the Espoo Convention, the rich developments in national EIA legislation and practice, TEIA between territorial states, EIA for activities in areas beyond national jurisdiction, and the EIA policy and practice of financial institutions appear to have many mutual influences and together support the further advancement and globalisation of TEIA. 2.2

Common Issues and Concerns in TEIA Systems

The Threshold for TEIA: likelihood of significant transboundary impact Most TEIA systems include a certain threshold for determining whether a project undergoes the TEIA procedure. Most systems require TEIA for activities that may cause ‘significant environmental impacts’. Although the terminology varies, a certain degree of ‘seriousness’ of the potential impacts determines whether an activity must be subjected to TEIA. The Antarctic EIA system is special in the sense that all activities must undergo EIA; however, the system distinguishes three ‘levels of EIA’ and the most comprehensive level of EIA – the CEE, which may best be compared with ordinary EIA under other systems – is only required for activities that are likely to cause ‘more than a minor or transitory impact’. As discussed in Chapter 9, this wording derives from the term ‘significant impact’. The problem with this unclear terminology that is used to set the threshold for EIA or certain levels of EIA is that there may be a tendency to produce preliminary assessments indicating that activities will have impacts just below the threshold in order to limit EIA obligations and the associated administrative burden. This risk was discussed in the chapter on EIA in the Antarctic but the evaluation of the World Bank’s policy also highlighted this problem: Too many projects with serious impacts on the environment are mistakenly categorized as “B” rather than “A”, with the result that key elements such as analysis of alternatives and potential environmental impact on a wider area than the project site, public consultations, and supervision do not receive 29 adequate attention.

29

Chapter 12(4.1).


17

This mistaken categorization may also pose a problem where TEIA between states is concerned, as the origin state may view the involvement of another state and its public as threatening the implementation of the proposed activity: in many cases it can be presumed that the potentially affected state and its public – if made aware of the project’s likely transboundary consequences – will view these negatively given that they will face only the project’s environmental hazards rather than enjoy its economic benefits. This issue is not adequately dealt with in TEIA systems. In the NEPC, for instance, the permitting authority, whichever it is, is left to decide whether to notify if it ‘finds that the activities entail or may entail nuisance of significance in another Contracting State.’ The problem with this approach is that it leaves immense discretion to the origin state as to whether it should notify the potentially affected state or not. The Espoo Convention contains a list of activities in its Appendix I which, it is assumed, must undergo a TEIA procedure, but the origin state is not in fact obliged to notify in every case where the proposed activity is listed in the appendix. Only if the Appendix I activities are likely to cause significant adverse transboundary impact is the origin state bound to notify and commence a TEIA procedure, which leaves the origin state to interpret these relative terms as it sees fit. The innovative aspect of the Espoo Convention in this regard is that Appendix I activities may be subjected to an inquiry commission procedure to assist in determining whether the likely impact should be considered ‘significant’. Importantly, the potentially affected state can even commence this procedure without the participation of the origin state. and is thus in a position to place more pressure on the origin state to commence the TEIA procedure. Also important, as shown in Chapter 1 with respect to the first inquiry commission procedure between Romania and Ukraine, is that any bilateral conflict between the parties becomes a matter for the whole treaty community of the Espoo Convention, since the Secretary of the Convention informs all the parties of any pending inquiry. 30 An interesting approach can also be seen in the draft TEIA agreement between the US, Canada and Mexico, where notice for projects is based on geographical distance, i.e., the project being within 100 kilometres of the international border, whereas the competent government authority is given much more discretion when the activities are proposed to be located outside 30

For a recent overview by the inquiry commission procedure in this case, see Meeting of the Parties to the Convention on Environmental Impact Assessment in a Transboundary Context, Working Group on Environmental Impact Assessment, Economic Commission for Europe, UN Doc.ECE/MP.EIA/WG.1/2007/5 (12 March 2007). The document is available on the website of UNECE, at (accessed 25 April 2007).

18


of this 100 kilometre limit.31 The draft TEIA agreement in North America did not envisage an inquiry commission procedure to resolve possible conflicting interpretations of whether a project would cause significant transboundary impacts, although guidance for such a determination is provided in the draft. The issue of what should trigger a TEIA procedure should probably be more closely harmonised in different TEIA procedures to reflect the requirements of the no-harm principle of general international law, as TEIA forms one essential means of observing this principle. It seems fairly well accepted that the no-harm principle is breached if significant (or similar harm, such as ‘more than minor or transitory’, a term used in the Antarctic Protocol) – but no longer serious – adverse transboundary impact is caused to the environment of other states, or areas beyond national jurisdiction.32 In order to better observe the requirements of the no-harm principle, it would seem fitting not to adopt the approach chosen in the Espoo Convention which requires likelihood of significant transboundary impact; instead, TEIA should be required when there is a reasonable chance that transboundary impact will occur. This would also decrease the broad discretion left to states as to whether to initiate TEIA or not. Here we can see how the multilateral development banks can complement the formal requirements of the conventions. As argued in Chapter 13, even in cases where the EBRD concluded that the likelihood of transboundary impacts was extremely low or nil, it nevertheless consulted the Espoo Secretariat and commenced a TEIA in line with the principles of the Convention, because public opinion on the other side of the border might have become hostile to the proposed activity if the public had not been given an opportunity to receive information on the activity and voice its concerns. However, at the end of the day, almost all TEIA systems leave certain discretion with regard to commencing TEIA and with good reason: without a finding of significance, TEIA is only a costly and conflict-provoking 31

32

See Art. 2. According to Art. 2(1a), all the proposed activities listed in Appendix I and located within the 100-kilometre limit have to undergo TEIA. This differs from the approach in the Espoo Convention, which gives more discretion as it is based on the list of activities as well as the qualitative criteria of the proposed activity being likely to produce significant adverse transboundary impacts. For projects outside the 100kilometre limit in the Draft TEIA, Appendix III provides criteria to help determine whether significant adverse transboundary environmental impacts would occur. See the draft TEIA agreement at (accessed 13 June 2007). See Malgosia Fitzmaurice, ‘The Variety of Theoretical Bases of Responsibility for Environmental Damage’ in Global Biodiversity (Helsinki: Societas Ivris Ambientis Fennica and Ius Gentium ry, 1997) 49-98, at 58.


19

exercise. The only exception to this observation is not in force – the draft TEIA agreement in North America with its 100-kilometre-from-the-border trigger for notification – and it does seem like too rigid a method for defining the applicability of a TEIA procedure. A more convincing approach would be to relate the question of significance to vulnerability indicators, since the indicative lists can clarify what the relative term ‘significant’ means in various contexts.33 Content of TEIA The contents of the EIA report or statement as required under the various TEIA systems are very similar. Most systems require the report to include a description of the proposed activity, a description of the initial environmental reference state, a description of the environmental impacts (e.g., direct, indirect and cumulative impacts), measures to prevent and/or mitigate such impacts, alternatives for the proposed activities and the potential impacts of these alternatives, an account of gaps in knowledge and a non-technical summary of the report. In terms of environmental protection, the consideration of alternatives – and the evaluation of how the environmental effects of each alternative could be mitigated – forms one of the major components of the EIA process. In particular, this aspect relates to whether TEIA is to be considered only as a procedure resulting in comprehensive research reports. The research necessary for an adequate TEIA, the information gathered on possible alternatives and mitigation measures, and the consultation with various stakeholders provides the decision-maker with information enabling it to modify the proposed activity so that it will not cause significant transboundary impacts. 33

See, e.g., Appendix III of the Espoo Convention, which provides that ‘1. In considering proposed activities to which Article 2, paragraph 5, applies, the concerned Parties may consider whether the activity is likely to have a significant adverse transboundary impact in particular by virtue of one or more of the following criteria: (a) Size: proposed activities which are large for the type of the activity; (b) Location: proposed activities which are located in or close to an area of special environmental sensitivity or importance (such as wetlands designated under the Ramsar Convention, national parks, nature reserves, sites of special scientific interest, or sites of archaeological, cultural or historical importance); also, proposed activities in locations where the characteristics of proposed development would be likely to have significant effects on the population; (c) Effects: proposed activities with particularly complex and potentially adverse effects, including those giving rise to serious effects on humans or on valued species or organisms, those which threaten the existing or potential use of an affected area and those causing additional loading which cannot be sustained by the carrying capacity of the environment. 2. The concerned Parties shall consider for this purpose proposed activities which are located close to an international frontier as well as more remote proposed activities which could give rise to significant transboundary effects far removed from the site of development.’

20


An issue of particular concern in the quality of TEIA is the availability of information on the cross-border environment. For instance, the Espoo Convention endeavoured to create a system for including the studies of the environment on the other side of the border; however, it neither requires the national EIA documentation to address transboundary impacts34 nor obligates the origin state to request information on the affected environment from the potentially affected state.35 This very cautious approach by the Espoo Convention is open to criticism, for it is difficult to imagine that transboundary impacts can be adequately evaluated if the organ or company studying the impacts of a proposed activity does not receive information on the environment across the border. At the minimum, the potentially affected state should be guaranteed the right to provide information on the environmental conditions on its side of the border. To take this to a more general level, the impact studies should ideally be carried out through ad hoc joint committees of the concerned states or, as suggested by Article 3(6) of the Espoo Convention and the practical experience of the EBRD, through existing joint bodies. In the EBRD' s experience, these joint bodies have been very important in situations where direct notifications were difficult or politically sensitive.36 Furthermore, in situations where the potentially affected state strongly objects to the proposed activity, it may very well commission its own studies of the likely transboundary impacts, leading to a situation where two competing studies aggravate the dispute. In such situations, the use of a joint body is more than recommendable. One desirable option would be to establish an ad hoc joint committee that would supervise the carrying out of impact studies related to a specific proposed activity and would be composed of national and local level officials, as well as representatives of the public from both sides of the border. Public participation Public participation is also broadly recognised as an important component of EIA and TEIA. Involvement of the public makes it possible to get a more complete view of the potential impacts of a proposed activity. Involving the public and particularly interest groups is also a means for ensuring the correct implementation of the EIA procedure, as these stakeholders will critically follow the steps taken in the procedure and the content of studies and reporting. Furthermore, public involvement may be of high value for building support for an activity in a community, which may forestall conflicts and court procedures. 34 35 36

See Appendix II of the Espoo Convention. See Art. 3(6). Chapter 13(4(a)).


21

However, the involvement of the public in TEIA procedures is many times more complicated than in domestic EIA. For instance, in TEIA between states the question is how to involve the public of the potentially affected state in a systematic way and in an early stage of the EIA procedure. The NEPC does not provide for this very well for the simple reason that its transboundary procedure was not based on national EIA procedure but on various licensing arrangements. As a consequence, in most cases the TEIA procedure has not gone beyond the formal exchange of views by national line agencies. Although the Espoo Convention contains better public participation provisions, it does not fully ensure public participation in the case of potential transboundary environmental impacts either. As was noted in Chapter 2, one of the main concerns of the Espoo Convention is precisely how to organise public participation in the transboundary context, a matter for which at least guidelines have been accepted.37 The EBRD has noted in several cases that, even where the public of the potentially affected state would like to participate in a TEIA, the Espoo Convention does not contain any obligations to organise public participation in situations if the potentially affected state does not respond to the notification of the origin state38 – a state of affairs that was considered a problem also in the case of the Caspian Sea.39 In addition, the Convention does not require the potentially affected state to notify its own public after it has received the final decision on the project from the origin state. Even if public participation is ensured in guidelines or agreements, in practice such arrangements may be difficult to implement, for instance, because organising meaningful public participation is time consuming and often requires adequate funding. This concern was considered a challenge in the Caspian Sea context.40 In the inter-state context, the document ’Guidance on Public Participation in Environmental Impact Assessment in a Transboundary Context’, adopted by the third Meeting of the Parties to the Espoo Convention, gives states the tools to organise model public participation in TEIA, although its success depends heavily on whether the relevant parties – the public at large, local and national authorities – are educated to make best use of this opportunity. Public involvement in the EIA procedure can be even more problematic for activities in areas beyond national jurisdiction, particularly because no 37

38 39 40

The document ‘Guidance on Public Participation in Environmental Impact Assessment in a Transboundary Context’ was adopted by the third Meeting of the Parties (ECE/MP.EIA/7), available at (accessed 13 June 2007). Chapter 13(4(e)). See Chapter 3(5.1). Ibid., Chapter 3(5.2).

22


people live year-round in these areas (as yet). Interestingly enough, the legal and political regimes for the global commons acknowledge explicitly that ‘mankind as a whole’ has an interest in these areas and their resources. This applies to the areas designated as part of the Common Heritage of Mankind (CHM), e.g., the deep seabed,41 but also to Antarctica. The international systems applicable to these areas explicitly state that the regulations and other measures that are being developed for the management of the areas aim to serve ‘the interest of humankind as a whole.’42 This acknowledgement of the interest of humankind as a whole would expect a well developed mechanism for public participation in respect of the relevant areas, and indeed some interesting examples have been provided in Part II of this book. For instance, even though the practice in the space sector has mostly adhered to national rules, these rules can be applied in an international fashion, as was done in NASA in the case study presented in Chapter 11. NASA consulted some foreign NGOs, and some individuals and NGOs outside of the US submitted comments on their own initiative.43 More extensive public participation provisions can be found in the case of the Antarctic. The Protocol’s procedural requirements, including requirements on public consultation, apply especially when the impacts of an activity are likely to be more serious.44 The most detailed procedural requirements, including requirements on consultation, apply to the CEE procedure. According to Article 3(3) of Annex I, the draft CEE ‘shall be made publicly available and shall be circulated to all Parties, which shall also make it publicly available, for comment.’ Thus, the Protocol obligates the contracting parties to ensure that the public will have the opportunity to make comments on draft CEEs – both those prepared under the jurisdiction of the relevant contracting party and those prepared under the jurisdiction of other contracting parties. The same paragraph adds that a period of ninety days is to be allowed for the receipt of comments. The Antarctic model for public participation could well serve as a model for the deep seabed regime 41 42

43 44

UNCLOS, Art. 143(1). Ibid., Art. 143(1): marine scientific research in the deep seabed ‘shall be carried out exclusively for peaceful purposes and for the benefit of mankind as a whole.’ Also the preamble of the regulations on prospecting and exploration of polymetallic nodules, discussed in Chapter 10 of this book, reiterates the CHM status of the deep seabed and its resources, noting that its ‘exploration and exploitation […] shall be carried out for the benefit of mankind as a whole.’ See Chapter 11(4). As noted in Chapter 9(3.6), the Madrid Protocol appears to give much freedom in designing the procedure at the domestic level where preliminary assessments (PAs) and initial environmental evaluations (IEEs) are concerned. Provisions on the involvement of the public, experts or the CEP and other contracting parties are not included in the Protocol for these levels of EIA.


23

in particular, given that it is an institution representing the interests of humankind. TEIA and decision making One very important consideration is how and to what extent the information contained in the EIA report will be used by the licensing decision-maker. This is of general importance for all EIA: ‘an EIA system needs to demonstrate not only that the decision should be influenced by the EIA […] but that, in practice, the EIA report actually influences the decision and is not just ‘boiler-plate’ paper.’45 The same applies to TEIA. Some of the TEIA systems, especially the Espoo Convention, make it very clear that the licensing decision has to take due account of the EIA report, and thus also of the comments made by the potentially affected state and its public. The Antarctic EIA system includes a similar obligation: Article 4 of Annex I to the Environmental Protocol to the Antarctic Treaty states, ‘any decision on whether a proposed activity […] should proceed, and, if so, whether in its original or in a modified form, shall be based on the CEE as well as other relevant considerations.’ The Espoo Convention even takes an extra step: as the Review of Implementation of the Espoo Convention studied in Chapter 2 revealed, the party of origin is under an obligation to provide the affected party with the final decision on the proposed activity along with the reasons and considerations on which it was based, although it must be noted that this requirement has not been observed on some occasions. However, it is difficult to assess to what extent the decision is actually influenced by the TEIA report, and we are not in a position to draw firm conclusions on this issue on the basis of the contributions to this book. The general impression is certainly that most TEIA systems have a rich practice and that when these processes have been applied in practice, they have greatly promoted environmental performance. For instance, the outcome of impact studies and the accessibility of such studies to the public and environmental interest groups promote debate on topics such as what the best alternative is for conducting the activity. One might argue that (T)EIA seldom results in the refusal of project, but the success of EIA should clearly not be assessed solely by the percentage of procedures that are followed by a ‘no’ decision. It is better to study the whole process and to investigate the development of the proposal from its original to final form, as set out in the licence application, for example. This was not a focus of this book, but is certainly an important issue that could be the subject of future research.

45

C. Wood, Environmental Impact Assessment: a Comparative Review (Harlow (UK): Longman Group Limited, 1995), at 195.

24


Directly related to this discussion on ‘influencing the decision making process’ is the question which environmental (and social) impacts are regarded as acceptable. Evidently, this issue is determined by material norms of international and national environmental (and other) laws, depending on the TEIA system. For TEIA projects influenced partly or primarily by financial institutions, there is an inevitable connection between impact studies and the final decision: if the final decision does not take the EIA report into account, this will entail serious problems for the reputation of the financial institutions – a fact that increases the likelihood of the final decision reflecting the results of the EIA report. Importance of institutionalisation It is of great importance for the proper functioning of a TEIA system that there are international level bodies in charge of developing the system and supervising compliance with it. One problem with some of the early international environmental treaties was that they did not establish any such international bodies, a point well shown in Chapter 4 on the NEPC. The Espoo Convention, as well as other modern international environmental treaties, avoided this shortcoming by having even the signatories meet regularly before the entry into force of the Convention. To date, the Meetings of the Parties of the Espoo Convention have created subsidiary organs that regularly develop the Convention, monitor its implementation and application, and supervise compliance with its requirements.46 As was argued in Chapter 3, the Secretariat could play an important role in the implementation of the future Caspian Sea Protocol on Environmental Impact Assessment in a Transboundary Context by disseminating information and facilitating public participation. The Antarctic Treaty system has a strong institutional structure. Particularly relevant are the Antarctic Treaty Consultative Meeting, which convenes once a year and is now assisted by a permanent secretariat and the Committee for Environmental Protection, which provides advice to the ATCM on various environmental management issues, including the issue of the application and implementation of environmental impact assessment procedures under Annex I to the Environmental Protocol. Among other requirements, parties are required to circulate draft CEEs, to provide the text of final CEEs, to provide an annual list of the initial environment evaluations (IEEs) produced and, when requested, the text of actual IEEs. 46

See Timo Koivurova, ‘The Convention on Environmental Impact Assessment in a Transboundary Context’ in Geir Ulfstein (ed.), in collaboration with Thilo Marauhn and Andreas Zimmermann, Making Treaties Work: human rights, environment and arms control (Cambridge: Cambridge University Press, 2007), at 218-239, in particular 226239.


25

For the most comprehensive stage of EIA, the CEE, the set of requirements on transparency and international consultation is unique: the draft CEEs must be distributed to all contracting parties of the Protocol (consultative and non-consultative alike) and these 46 states should all enable their publics to have access to this information. In addition, official inspections can be carried out, for instance, to assess whether station management personnel are aware of the requirement to conduct an EIA for all new activities, to determine whether activities that have been carried out were the subject of prior EIAs, and to ascertain whether prevention or mitigation measures identified in an EIA are actually being undertaken. With this system of circulation of information, communication and inspection there is a good basis for a process of continuous improvement of the EIA system. For instance, the ATCM can adopt more detailed EIA guidelines regarding certain issues based on comparative studies of EIA practice and the findings on EIA in inspection reports. Parallel to the consultation on draft CEEs, the contracting parties could also promote the exchange of best practices regarding preliminary assessments and IEEs, for instance, through the recently established informal discussion forum for Antarctic competent authorities. In fact, a similar informal body with similar tasks was suggested in Chapter 8 for developing the Guidelines for EIA in the Arctic, should these be taken into active use. Financial institutions also have developed certain ‘institutional arrangements’ to promote supervision of the EIA process and to determine how an EIA and the related monitoring are implemented. The World Bank has established an Inspection Panel to which private citizens living in the project area (or who represent people living there) and who are likely to be affected adversely by project activities may submit a request for investigation. On the basis of a preliminary review, the Independent Panel may decide – with the approval of the Board – to undertake such an investigation. The Board will then decide on the steps to be taken on the basis of the investigation and the recommendations of the Bank’s management. As is concluded in Chapter 12, the frequency of complaints to the Inspection Panel is on the rise, and there have been more complaints submitted during the last two years than during the first seven years of the Panel’s existence. This seems to confirm that the outside world is expecting more accountability and better performance from the World Bank, and this is a very healthy popular surveillance mechanism. The EBRD has also developed and implemented an accountability mechanism, known as the Independent Recourse Mechanism (IRM), which allows stakeholders affected by an EBRD-financed investment to file grievances directly with the Bank. The mechanism has a dual function of problem solving and compliance review. In its problem-solving role, the IRM reviews

26


communities’ concerns about the possible adverse affects of EBRD-financed projects, while the compliance review function improves the accountability of the EBRD in adhering to its own environmental policies and procedures. Stakeholders must be able to show that they have been adversely affected by an EBRD-financed project, which makes the information on the project available to stakeholders in countries outside the country of origin. The Equator Principles require (for category A projects) EIAs to be reviewed by an independent third-party consultant as a formal and mandatory requirement, which enhances the objectivity of the evaluation. All largescale Category B projects, for which an independent third-party consultant is recommended, are normally subject to an assessment or at least a review of the EIA that is ordered by the lenders. Other important factors influencing the practical functioning of TEIA systems As discussed in Chapter 2, one of the main concerns of the Espoo Convention is how to implement the Convention in practice, a task for which guidelines were adopted by the third Meeting of the Parties.47 In order to have a well-functioning TEIA system, much attention must be paid to coordination between different agencies and communication structures ensuring that information will flow and to the correct authorities. This goal cannot be achieved if there is no training for the relevant authorities on their obligations and rights under a TEIA agreement, as well as general capacity building and raising an awareness of the TEIA system among the public. It is also relevant to have international monitoring or supervision mechanisms to see to it that the deficiencies of the TEIA system can be addressed – or at least an informal body where the more complex and problematic issues of TEIA can be discussed. The practice of some existing TEIA systems, such as the one developed under the NEPC, indicates that in order to ensure effective transboundary communication, there must be a clearly defined national authority having overall responsibility for coordination of communication with others (points of contact). This coordination must operate both vertically between the central government and sub-administrative levels and horizontally between different governmental line agencies. For instance, within the framework of the NEPC, problems arose when responsibility was allocated to many different examining authorities and different government levels with no overall coordinating agency for notification: one problem was how to educate these various agencies about their responsibilities under the 47

Guidance on the Practical Implementation of the Espoo Convention, UN Economic Commission for Europe, UN Doc. ECE/MP.EIA/8, available on the website, at (accessed 13 June 2007).


27

NEPC, another a lack of awareness as to which agency would handle the international communication. Indeed, a ‘clear need for transboundary coordination between federal and sub-state governments’ was highlighted for North America in Chapter 5: ‘The absence of minimum transboundary EIA obligations that are recognized by sub-state units is at the heart of interstate disputes regarding EIA obligations [...].’48 This issue of coordination has received special attention in the Caspian Sea context, where it was emphasised that the parties should regularly update their information on their focal points for notification in order to really know to whom notification is to be sent. In fact, communication was argued to be a key to success in TEIA in the case of the Caspian Sea, since past TEIA procedures had failed already at the notification stage. In the EBRD’s experience, the notification procedure between foreign ministries was formal and involved high-level political action, which in many instances acted as an obstacle to notification, whereby the Bank suggested using existing joint bodies as focal points for TEIA procedures. The private-sector clients of the EBRD were keen to obtain detailed guidelines as to how to implement the Espoo Convention requirements, since this had a distinct impact on timing, cost and public consultation programs. As shown in Chapter 2, the Review of Implementation of the Espoo Convention revealed that the content of the notifications did not always comply with Article 3 of the Convention and Decision I/4 adopted at the first Meeting of the Parties. Central America is currently engaged in processes moving towards the construction of general guidelines on TEIA, as well as training in and the development of guidelines for TEIA; these will include a component dealing with public and political awareness of the importance of environment and poverty issues related to the transboundary context and EIA in that context. The same can be said of the Bay of Bengal region, although efforts there are incipient. The work being done there to promote awareness of environmental issues is expected to contribute to building EIA and even TEIA systems in the long run. In the case of Caspian Sea, many practical difficulties continue to pose great obstacles to TEIA, such as arbitrary regulations, processing delays due to the insufficient capacity of authorities, problems in communication due to an insufficiently clear understanding of the TEIA procedure or knowledge of the responsible authorities. The region’s national governments, UNECE and CEP tried to tackle the problems with national capacity building and training workshops. The principal challenges were to 48

Chapter 5(5). However, Craik also notes in the same chapter that ‘institutions such as the BECC, the Border Governors Conference, the U.S.–Canada Air Quality Committee and environmental cooperation agreements between states and provinces have increased substate environmental coordination efforts along both borders.’

28


identify key actors in the process, their role (e.g., who should receive the notification) and how to function in a multi-layered governmental structure. In the Caspian Sea context, as well as in the Espoo Convention, one clear realisation has been that local administrations must be better educated regarding their international responsibilities. In one workshop organised under the Caspian Sea EIA Guidelines, the local EIA practitioners ‘acknowledged that although they had undertaken EIAs near their country borders, they were simply not aware of a regional transboundary EIA procedure.’49 In Chapter 2 it was argued that for an effective application of the Espoo Convention it could be useful to designate, in addition to the national contact points, contact points at the local or sub-regional level.50 Indeed, it is mostly the local EIA practitioners that come across with proposed activities with possible transboundary impacts, and if they are not aware of the international obligations of their state, it is highly unlikely that a TEIA will be conducted, since the governmental level does not even become aware of the proposed activity and its possible transboundary impacts. Such concerns are less pertinent in the case of EIA for activities in areas beyond national jurisdiction, such as the deep seabed and Antarctica. For these systems, international institutions play a more central role in exchanging information and facilitating international consultation. For instance, for the Antarctic, each draft CEE should be tabled at the next meeting of the Committee for Environmental Protection and the Antarctic Treaty Consultative Meeting, and after the international consultation the final CEE should be sent to all Consultative Parties (through diplomatic channels). ‘Continuing TEIA’: implementing preventive and mitigation measures and monitoring Also problematic is the post-project analysis, or monitoring, stage. Not even the Espoo Convention contains any mandatory requirements but only a possibility for the concerned states to organise post-project analysis under Article 7. This can be contrasted with what the ICJ elaborated in the Gabcíkovo-Nagymaros case, when it essentially took the view that evaluation of the environmental risks of proposed activities and monitoring of the materialised impacts should be seen as part of the concept of sustainable development.51 This was even further clarified by then Vice49 50 51

Chapter 3(5.2). Chapter 2(3.4). Para. 140 of the judgment reads: ‘In order to evaluate the environmental risks, current standards must be taken into consideration. This is not only allowed by the wording of Articles 15 and 19, but even prescribed, to the extent that these articles impose a


29

President of the ICJ, Christopher Weeramantry, in his separate opinion under the heading ‘The Principle of Continuing Environmental Impact Assessment’: I wish in this opinion to clarify further the scope and extent of the environmental impact principle in the sense that environmental impact assessment means not merely an assessment prior to the commencement of the project, but a continuing assessment and evaluation as long as the project is in operation. This follows from the fact that EIA is a dynamic principle and is not confined to a pre-project evaluation of possible environmental consequences. As long as a project of some magnitude is in operation, EIA must continue, for every such project can have unexpected consequences; and considerations of prudence would point to the need for continuous monitoring.52

This principle of continuing environmental impact assessment has not been well established in TEIA, or even in many national EIA systems; however, it does come close to the policy of financial institutions. As discussed in Part III, financial institutions – the World Bank, the EBRD and the Equator banks – expect EIA reports to include Environmental Management Plans or Action Plans that describe which mitigating measures will be taken during the operational phase of the activity and how environmental changes will be monitored. This is indeed a very important contribution that the financial institutions can make to TEIA procedures. For the World Bank, the Environmental Management Plan is an integral part of the environmental assessment for Category A activities (activities ‘likely to have significant adverse environmental impacts that are sensitive, diverse, or unprecedented’). For A-level projects (set out on the indicative list, which is contained in Annex I of the 2003 Environmental Policy),53 the EBRD requires the project sponsors to provide an annual environmental report to

52 53

continuing--and thus necessarily evolving--obligation on the parties to maintain the quality of the water of the Danube and to protect nature [...]. The Court is mindful that, in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage [...]. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past. This need to reconcile economic development with protection of the environment is aptly expressed in the concept of sustainable development [...].’ Gabcíkovo-Nagymaros Project (Hungary/Slovakia), supra note 23, at 111. Gabcíkovo-Nagymaros Project (Hungary/Slovakia), supra note 23, at 111. See European Bank for Reconstruction and Development, Environmental Policy (London: European Bank for Reconstruction and Development, 2003), at 15-16; available at (accessed 13 June 2007).

30


the affected public locally and encourages release of this information on the project sponsor' s website. For all categories of projects where significant environmental issues have been taken up, or where the affected public shows particular interest, the EBRD encourages or requires project sponsors to commit to ongoing information and communication programs. For the Equator banks, the Equator Principles prescribe that the EIA should address mitigation measures to be incorporated in the project design to comply with the environmental and social standards defined in the World Bank and International Finance Corporation (IFC) policies. Especially for Category A projects, these mitigation and monitoring requirements are meant to ensure ongoing compliance with the environmental and social standards in the form of an Action Plan. This plan is subject to a review by a third-party consultant and is also required for Category B projects. However, as observed in Chapter 13, it is important to keep in mind that financial institutions have to accept that they cannot fully dictate how TEIA is carried out. Even though the EBRD has committed itself to implementing the Espoo Convention in its Environmental Policy, the leverage it has is mainly with private companies, which have no role under the Convention. If a project sponsor is a private-sector company, it cannot undertake the intergovernmental notification required under the Espoo Convention, even if the EBRD requires it. 3.

FUTURE DEVELOPMENTS

3.1 A Global TEIA Convention for Transboundary Environmental Impacts between States? The development of TEIA systems as discussed in this book and particularly the interest in establishing TEIA in less developed regions of the world raise the question whether a global international agreement on TEIA should be elaborated. In 2003, Knox presented two possible arguments for this idea: TEIA is a (procedural) component of Principle 21 and ‘the enormous popularity of domestic EIA,’54 which enables states ‘to base a global EIA treaty on their own domestic EIA laws.’55 Knox discusses three obstacles to a global TEIA treaty: the vague character of the no-harm principle, differences between domestic EIA legislation, and the states’ focus on resolving environmental issues with their neighbours rather than in global 54

55

John Knox, ‘Assessing the Candidates for a Global Treaty on Transboundary Environmental Impact Assessment’, 12 New York University Environmental Law Journal (2003-2005) 153-168, at 155. Ibid.


31

level.56 After discussing the question to what extent the ILC Draft Articles on Prevention and the Espoo Convention address these obstacles, the author concludes that the Espoo Convention is the best ‘candidate’ for a global treaty on TEIA, provided the existing parties would open the way by ratifying the first amendment to the Convention.57 We agree with Knox on this conclusion. At first sight, the ILC Draft Articles seem to be a more tempting alternative simply because they have been recommended by the ILC for global treaty negotiations under the UN General Assembly. On the other hand, the fate of the Draft Articles is unknown, given that no decision has been taken as to how to begin the process even though the liability project has been completed. And, it seems that the Draft Articles might require too much from states at present, since the Articles do not draw on the Espoo approach; i.e., they do not rely on the existing domestic EIA systems as a basis for TEIA. It is also worrisome that the other comprehensive environmental project of the ILC, the outcome of which was the Convention on the Law of the Non-Navigational Uses of International Watercourses, has received only few state ratifications even though it was watered down during the negotiations from the version originally proposed by the ILC.58 In this light and in view of the development of the Espoo Convention as discussed in Chapter 2 of this book, we share Knox’s view that the Convention seems to offer a better alternative: it builds on extending the already existing national EIA systems to transboundary impacts and actors, and therefore does not require an immense implementation process. States could implement the Convention 56 57

58

Ibid., at 156-157. The first amendment, which now has nine parties and has not entered into force, reads: ‘Any other State, not referred to in paragraph 2 of this Article, that is a Member of the United Nations may accede to the Convention upon approval by the Meeting of the Parties. The Meeting of the Parties shall not consider or approve any request for accession by such a State until this paragraph has entered into force for all the States and organizations that were Parties to the Convention on 27 February 2001.’ See Decision II/14 of the Second Meeting of the Parties to the Espoo Convention, UN Economic Commission for Europe, UN Doc. ECE/MP.EIA/4 (7 August 2001), at 144. Art. 14(4) states: ‘Amendments to this Convention adopted in accordance with paragraph 3 of this Article shall be submitted by the Depositary to all Parties for ratification, approval or acceptance. They shall enter into force for Parties having ratified, approved or accepted them on the ninetieth day after the receipt by the Depositary of notification of their ratification, approval or acceptance by at least three fourths of these Parties. Thereafter they shall enter into force for any other Party on the ninetieth day after that Party deposits its instrument of ratification, approval or acceptance of the amendments.’ See Stephen C. MacCaffrey and Mpazi Sinjela, ‘The 1997 United Nations Convention on International Watercourses’, 92 American Journal of International Law (1998), at 97107. The Convention on the Law of the Non-navigational Uses of International Watercourses has only 15 ratifications; under Art. 36(1) of the Convention, 35 are needed for the treaty to enter into force.

32


with rather minimal effort, inserting provisions related to TEIA into their national EIA legislation. However, we need to discuss whether a global TEIA convention would have added value: ‘why would a global EIA agreement be preferable to a series of regional agreements?’59 Knox does not answer this question. As discussed above, modern TEIA does not simply derive from national EIA. However, it was also concluded – particularly in view of the discussion on the Caspian Sea region and Central America – that TEIA between states is still strongly related to their national EIA systems, their legal culture, the history of the relationship between the relevant states, possible disagreements on territorial boundaries, and various other issues. This could be an argument for concluding that a global convention does not make sense and that TEIA systems could best be developed among a limited number of states. However, the Espoo Convention does not exclude the option of taking into account all these regional factors: the Convention may form the overall legal umbrella while more concrete agreements are developed regionally or even bilaterally.60 There are several examples of such bilateral TEIA treaties by states parties to the Espoo Convention, which is relevant for the Caspian Sea region, as a number of the parties involved in that context are also parties to the Convention. Building on the general acknowledgement that TEIA is of great importance to sustainable development worldwide, the development of the Espoo Convention as a global treaty might indeed be a beneficial development in the long run: it would create the opportunity for developing TEIA between states in a similar way around the world, ensuring that certain minimum standards are incorporated, while keeping the flexibility to take account of regional differences through ‘implementation agreements’ between a limited number of states. This would increase the chance of having national EIAs to evaluate the total range of likely impacts of a proposed activity and involving the public of the potentially affected state. Furthermore, since the Espoo Convention contains the mechanism for developing its requirements, some of the more obvious problems of the Convention could be remedied during the coming decades by the decisions 59 60

See John Knox, ‘Assessing the Candidates for a Global Treaty’, supra note 54, at 166. As provided in Art. 2(9) of the Espoo Convention: ‘The provisions of this Convention shall not affect the right of particular Parties to implement, by bilateral or multilateral agreement where appropriate, more stringent measures than those of this Convention.’ In fact, as pointed out by Connelly, the Espoo Convention was originally conceived of as a framework requiring further bi-lateral agreements for implementation, but during the negotiation phase this approach was abandoned in favour of a treaty imposing direct obligations on the parties. See Robert Connelly, ‘The UN Convention on EIA in a Transboundary Context: A Historical Perspective’, 19 Environmental Impact Assessment Review (1999), at 37.


33

of the Meeting of the Parties as well as amendments to the Convention. This would be very important, because in the course of time gentle pressure from the treaty community could lead to better and improved TEIAs. With the Convention having the mechanism to learn from its mistakes and successes, through the Meeting of the Parties, the Working Group on EIA and the Implementation Committee, it would seem that in the long run the TEIA practice engendered by the Convention would translate into better TEIA policies around the world. It is also pertinent to ask whether it would be politically feasible to have the Espoo Convention become a global treaty. There are many reasons why the Convention could spread to other regions of the world. First, the members of the Convention are a very diverse set of countries, including the so-called countries in transition, as well as the Central Asian countries.61 As was shown above, the Convention has also influenced the Caspian Sea process and has now been used in the assessment of impacts of a planned gas pipeline from Russia to Germany in the Baltic Sea even though in both cases there are countries involved that are not members of the Convention. In gaining gradual familiarity with the Espoo Convention, developing countries would be more willing to becoming members to it. Yet, we have to admit that this possible development of the Espoo Convention into a global convention – if it takes place – will not take place any time soon. The first amendment to the Espoo Convention has only been ratified by nine parties, which indicates that the present states parties are not that eager – at least at the moment – to expand the membership of the Convention. Moreover, even if the present parties did ratify the amendment, it seems likely that it would take a long time before states in the other regions start to join the Convention. Nonetheless, in the immediate future we can see a development whereby the Espoo Convention serves as the basic standard for TEIA, even outside the context of its parties, especially when prompted by the EBRD and other financial institutions. This makes it important to turn attention to the less developed elements of the Convention. In EBRD practice, it has been noted that the Convention lacks guarantees that the public of the potentially affected state will be involved even if its home state is not interested in participating in the TEIA procedure. Moreover, the Convention does not include an obligation for the 61

Recently, Guidelines on Environmental Impact Assessment in a Transboundary Context for Central Asian Countries were adopted in the Working Group on Environmental Impact Assessment (ECE/MP.EIA/WG.1/2007/6, 12 March 2007), prepared by Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan. Guidelines can be accessed via the website of the UNECE, available at (accessed 25 April 2007).

34


potential affected state to deliver the final decision to its own public even if it has participated in a TEIA procedure. These and possible other rather weak components of the Convention require the attention of the Meeting of the Parties, not only for the smooth functioning of the Convention among its parties, but also in view of the ‘benchmark function’ that the Convention may have in other regions of the world. 3.2 Developing TEIA in Regions of Developing Countries and Countries in Transition As the possible development of the Espoo Convention into a global TEIA convention is uncertain, and would at least take substantial time, the question is how TEIA between states might develop in the short and mid-term. Improving TEIA in developed regions of the world is also an issue. For instance, as discussed in Chapter 5, TEIA is not sufficiently ensured in North America. According to Craik, it could be argued that TEIA should be addressed through bilateral agreements, as the environmental concerns facing the three North American countries are to a significant degree bilateral in nature; however, he also states that ‘all three countries share a common set of problems relating to transboundary EIA’ and that in light of the complexity of TEIA in the region, ‘the most fruitful short term strategy may be the negotiation of a framework agreement setting out the goals and broad principles for transboundary EIA upon which both levels of government in each country can agree.’62 Further improvements must be considered also for the developed regions in the world that already have TEIA systems. For instance, a number of potential improvements to the Espoo Convention were identified above; certain states may consider the adoption of bilateral agreements to elaborate the Convention, and sufficient capacity (money, knowledge) is essential for adequate implementation of and compliance with TEIA. Improved TEIA appears to be even more urgently needed in developing countries and countries in transition than in the developed world. Local communities in many developing countries depend heavily on natural resources, and increased population and industrialisation have put more and more pressure on these resources. Many of the concerns are transboundary in nature, and while national EIA has been elaborated in many developing countries, the implementation of EIA and application of national EIA in respect of transboundary environmental impacts are problematic. The discussions in Chapter 6 with respect to Central America illustrate this well.

62

Chapter 5(5).


35

Recent trends, however, indicate that in certain developing regions there appears to be increasing political will to harmonise national EIA to address regional environmental concerns or to create TEIA agreements or guidelines in the short term. For instance, in Central America, as discussed in Chapter 6, the ministers of the environment of seven countries in the region adopted in 2002 the ‘Agreement on the Strengthening of the Environmental Impact Assessment System in Central America.’ To implement this agreement, a five year Regional Action Plan was adopted that resulted in various concrete achievements, including steps towards the strengthening and harmonisation of the national EIA system. Another explicit aim of the plan is the adoption of ‘agreements on Transboundary Impacts.’ As explained by the author of the chapter, such a regional TEIA agreement is urgently needed in view of the substantial increase in economic development in the region. Regional cooperation to promote sustainable development, including harmonisation of national EIA or the adoption of soft-law or hard-law instruments for TEIA, is also receiving increasing attention in other developing regions of the world. For instance, to focus on Africa, EIA legislation has been adopted in many African countries63 and, particularly in recent years, the importance of TEIA appears to have been acknowledged in certain regions of the continent. For instance, a book on national EIA legislation in Southern African countries concluded that ‘there is a growing realisation that EIAs need to consider cumulative and transboundary impacts in addition to local impacts.’64 In fact, certain TEIA (related) provisions are already included in certain international instruments in this region of Africa. Article 4 of the revised Protocol on Shared Watercourses of the Southern African Development Community (SADC) includes a detailed notification and consultation procedure for plans that ‘may have significant adverse effect upon other Watercourse States.’ According to Article 4(b), ‘[s]uch notification shall be accompanied by available technical data and information, including the results of any environmental impact assessment, in order to enable the notified States to evaluate the possible effects of the planned measures.’ The notified states should then have a period of six months to study and evaluate the possible effects of the planned measures (Article 4(c)), and if the notified state is of the view that implementation of the planned measures would be inconsistent with the substantial provisions

63

64

See, among other publications, Peter Tarr (compiled), Environmental Impact Assessment in Southern Africa (Windhoek (Namibia): The Southern African Institute for Environmental Assessment, 2003), available at (accessed 25 May 2007). Ibid., Part III (‘The Way Forward’).

36


of Article 3(7) or (10) of the Protocol,65 consultations and, if necessary, negotiations should be started ‘with a view to arriving at an equitable resolution of the situation’ (Article 4(g)). During this procedure, the notifying state is to refrain from implementing or permitting the implementation of the planned measures for a period of six months unless otherwise agreed, although an arrangement has been adopted for situations in which ‘the implementation of planned measures is of the utmost urgency in order to protect public health, public safety or other equally important interests’ (Article 4(i)). In part with reference to this concrete example of TEIA-related obligations in the case of shared watercourses and experiences elsewhere (e.g., the Espoo Convention, EIA by financial institutions), TEIA may be developed in more detail and in respect of other transboundary environmental issues in the future. Political will is important in this respect, but recently SADC ministers have emphasised the importance of strengthening trans-national cooperation in Southern Africa: at a recent ‘adhoc Committee Meeting of SADC Ministers Responsible for Environment and Sustainable Development,’ held in Botswana on 27 April 2007, the SADC Ministers adopted a communiqué stating:66 The Ministers underscored the importance of regional co-operation on issues of environment and sustainable development, particularly, in trans boundary natural resources management and trans frontier conservation areas approaches which offer great potential for environment based tourism and provide income generation opportunities for the rural communities. Ministers stressed the need to develop the SADC Protocol on the environment, and urged the Working Group mandated with overseeing the protocol development to ensure that the process is completed soon. Ministers recognized the importance of the protocol in addressing environmental issues of regional nature.

In 2006, a ‘Protocol on Environment and Natural Resource Management’ was adopted by the East African Community (EAC), indicating clearly that also in this part of Africa regional cooperation and particularly TEIA is 65

66

The substantial norm setting, implementing the no-harm principle, can be found in Art. 3 of this Protocol, which provision states that ‘watercourse States shall in their respective territories utilise a shared watercourse in an equitable and reasonable manner’ (Art. 3(7)(a)) and that ‘State Parties shall, in utilising a shared watercourse in their territories, take all appropriate measures to prevent the causing of significant harm to other Watercourse States’ (Art. 3(10)). Communiqué of the ad-hoc Committee Meeting of SADC Ministers Responsible for Environment and Sustainable Development, Gaborone, Botswana, 27 April 2007, available on the website of SADC, at (accessed 5 May 2007).


37

receiving increasing attention. For instance, Article 7 of the Protocol states that ‘The Partner States agree to co-operate in the following areas: [...] 9) conducting of environmental impact assessments and environmental audits.’67 Article 31 of the Protocol contains more concrete provisions on EIA and audits. The provision obliges the parties to: -

-

-

-

‘harmonise and adopt common policies, laws and programs requiring the conduct of environmental impact assessments for planned activities and projects which are likely to have significant adverse impacts in the Community’(para. 1); plan at an early stage for transboundary activities and projects that may have significant adverse environmental impacts’ and to undertake at an early stage ‘a comprehensive assessment of the impacts with regard to their own territories and the territories of other Partner States’(para. 2); ‘adopt common guidelines on environmental impact assessment in shared ecosystems68 including the criteria and procedures for conducting environmental assessments for planned activities and projects which are likely to have significant adverse environmental impacts’(para. 3); ‘adopt common guidelines and procedures for periodic environmental audits of the environmental soundness of activities or projects being implemented in the Community’ (para. 4).

To conclude, TEIA will continue to require substantial attention in developed regions, such as North America (establishing a trilateral TEIA system) and Europe (improving existing systems and ensuring adequate application and enforcement); however, from a sustainable development perspective the importance of developing and implementing TEIA in 67

68

Protocol on Environment and Natural Resource Management, adopted 3 April 2006, Arusha, Tanzania, available at (accessed 25 May 2007). Already in 2003, initiatives were taken within the framework of the Eastern African Community (EAC) to establish ‘guidelines for Regional Environmental Impact Assessment of shared ecosystems of East Africa.’ See the annual report 2003 of the African Centre for Technology Studies (ACTS), available on the website of the Centre, (accessed 25 May 2007). See also ‘The Second EAC Development Stategy 2001-2005’, para. 4(3)(4), available at (accessed 25 May 2007). However, the authors are not aware of the adoption of such guidelines in recent years.

38


developing regions must be emphasised. The developments in Central America and Africa indicate clearly that important first steps have been taken: there is political will to strengthen regional cooperation in the field of environmental protection and sustainable development, and in Africa TEIA provisions have already been included in international environmental agreements. It is most likely that these developments will continue in the years to come. Experiences in other regions, e.g. the Caspian Sea region, could be of great value for identifying in a timely manner the challenges that are likely to come up and possible ways to address them. Furthermore, similar developments may be promoted in other developing regions in the world, for instance, the Bay of Bengal, the Yellow Sea and the Mekong Delta. Clearly, as developments in Central America and Bay of Bengal regions indicate, financial institutions, inter-governmental organisations (especially the UNEP), and non-governmental organisations play an important role in this effort by supporting the cooperation in many ways, e.g., through funding, capacity building, and drawing up guidelines. 3.3 Developing EIA for Activities in Areas Beyond National Jurisdiction Particularly from the perspective of environmental protection, it is likely that concerns about areas beyond national jurisdiction will increase further in the near future. Particularly in the last 100 years, human activities have influenced the earth’s surface dramatically and the scarcity of space and living and non-living resources is worsening. Consequently, humankind is looking for other options, and it is likely that the global commons will increasingly be explored for their potential. Mining in the deep seabed area is one of the examples: Marine minerals, ranging from placer minerals on the coast to deep-sea ferromanganese nodules, are considered as resources for strategic minerals such as Ti, Zn, Cu, Ni, Co. As the land-based mineral resources are projected to get exhausted in the near future, mining of marine minerals would gain momentum in order to meet the growing demands of these metals.69

Tourism is another example of the increasing interest of humankind in the global commons. For instance, tourism in Antarctica has increased substantially. In less than two decades, the number of tourists that make landings in Antarctica has increased from about 2,500 (1990/91) to more than 27.000 (2006/07). While for many decades Antarctic tourism has 69

See the website of the Indian National Institute of Oceanography (NIO), at (accessed 25 May 2007).


39

primarily been ship-based, since the 2003-4 season so-called Fly-Sail or FlyCruise operations have started: tourists are taken to the Antarctic peninsula by aircraft, where they make excursions on yachts or cruising vessels.70 In the near future, such air-based tourism may easily be combined with snowmobile or hovercraft excursions, offering ‘bed & breakfast’ in (semi)permanent camping facilities and/or research stations. Certain research stations already accommodate overnight tourists and these activities are likely to expand. Also private operators may develop plans for establishing a (new) permanent tourism infrastructure in the Antarctic. This issue has been discussed within the Antarctic Treaty System since 2004, but at the 2007 meeting of the Consultative Parties to the Antarctic Treaty it was not politically feasible to agree on a limitation of such developments.71 In the longer term, the deep sea and space may become the subject of similar developments. In fact, tourism to these global commons has already started.72 For instance, in March 2007, Charles Simonyi travelled with a Russian space expedition to the International Space Station. He was the fifth ‘official’ space tourist, who paid about 20 million US dollars for having an ‘out of this world’ experience.73 According to a message on NASA’s website, Simonyi ‘is convinced that one day, humans will travel and live comfortably in space.’74 The increase of human activities in the global commons is in part stimulated by a scarcity of resources (e.g., wilderness values, mineral resources, and living resources such as fish stocks) in the rest of the world and by technological innovation that provides humankind with more and more options to conduct such activities. ‘Isolation’, hard physical conditions and limitations on technology provided protection for the global commons for a long time, but this is changing rapidly. 70 71 72 73 74

See (accessed 24 April 2007). Draft-Final Report of the 30th ATCM, New Delhi, 30 April-11 May 2007. For a popular description of the events that reflect the development of space tourism, see (accessed 25 May 2007). See (accessed 25 May 2007). See (accessed 25 May 2007). And he may be right; at least this appears to be the ambition of the space travel agency ‘Space Adventures’: ‘Space Adventures’ vision is to open spaceflight and the space frontier to private citizens. Over the next decade Space Adventures will fly more people to space than have made the journey since the dawn of the Space Age. Our clients will fly on suborbital flights, on voyages to Earth orbit and on historic expeditions that circumnavigate the moon. Flights will leave from spaceports both on Earth and in space, visiting private space stations, and aboard dozens of different vehicles. By continually providing newly available space experiences and improving existing space experiences, Space Adventures will continue to lead the private spaceflight industry that it begun in 2001 with the flight of the world' s first space tourist.’ See the website of Space Adventure, at (accessed 25 May 2007).


40

In addition to these factors, there are a number of other factors that make it clear that environmental concerns in relation to human activities in the global commons are likely to increase in the near future. These factors were discussed in several chapters of Part II of this book: -

-

Substantial gaps in knowledge exist regarding the values of the global commons, and therefore little knowledge is available on the potential impacts of human activities on these values; Damage may be caused by big projects, but cumulation of impacts by many human activities may be a special concern. Examples include the increase of permanent infrastructure for scientific research and/or tourism in Antarctica, as well as the increase of space debris in space; If damage occurs, this damage is likely to be irreversible, for instance, because of the limited options for taking response measures or simply because we do not know that certain damage has occurred.

These factors and the likelihood of further development of human activities in the areas beyond national jurisdiction make EIA for such activities an important issue for the future.75 Partly in response to the developments discussed above, protection of the environment of the global commons is receiving increasing attention on the part of countries, international organisations and other stakeholders involved in managing the global commons. For certain areas beyond national jurisdiction, the main international legal instruments constitute a framework for further measures for environmental protection. For instance, protection of the marine environment receives substantial attention in UNCLOS and with the adoption of the Protocol concerning Environmental Protection to the Antarctic Treaty, protection of the Antarctic environment has become one of 75

Beyond the scope of this book, but important for the protection of the global commons, is that – parallel to the EIA discussion – the issue of norm setting for human activities in areas beyond national jurisdiction requires further attention. The combination of scanty knowledge on the environmental and other values of the global commons, on the one hand, and the fast development of human activities in these areas, on the other, makes it important to take a pro-active approach in law and policy making. This has been stressed quite often, particularly with regard to the deep seabed and the Antarctic, but is not yet adequately reflected in concrete norm setting. For the Antarctic, for instance, the criteria for allowing activities are not well developed and – as discussed in Chapter 9 of this book – even for projects requiring a Comprehensive Environmental Evaluation (CEE), the final decision as to whether to proceed with the project is in the hands of the single state that tabled the CEE, even if the CEE concludes that the activity is likely to cause more than a minor or transitory impact on the Antarctic environment.


41

the pillars of the Antarctic Treaty System. However, except for the Antarctic, the EIA systems are very much in a developing stage, particularly in the case of space activities. The example of the Antarctic EIA system also shows that developing a comprehensive EIA system as such is not enough to ensure adequate protection of the environmental values of these areas beyond national jurisdiction. For instance, EIA is difficult to implement without comprehensive knowledge of the existing environmental and associated values. Also, accumulation of adverse impacts by increasing numbers of activities is a relatively new management issue, and although some new tools to address such impacts have been developed (e.g., the development of site-specific guidelines in the Antarctic), it still is a major concern. Consequently, scientific research, including monitoring programs, to gain a better understanding of the environment of the global commons and the potential effects of human activities is important for the smooth functioning of EIA. This requires sound international cooperation in the international community. In particular, the policy and regulations regarding the deep seabed emphasise these aspects and other systems may learn from these experiences. For instance, although scientific cooperation is an important fundament of the Antarctic Treaty System, questions arise in respect of the efficient coordination of research efforts of all Consultative Parties and ‘monitoring’ in particular is – despite obligations in the Protocol on this issue – still poorly developed. 3.4

Globalisation of TEIA: A Continuing Process

The discussions in this book show that during the last two decades TEIA has become an important instrument of environmental policy and law in many parts of the world. It is part of an increasing number of international conventions. Certain conventions apply to activities that may cause significant impacts on the environment of a neighbouring country, while others regulate EIA for activities in certain areas beyond national jurisdiction. In areas where such agreements do not apply, TEIA has increasingly been implemented through the application of national EIA legislation to activities with potential significant transboundary impacts (e.g., North America and Central America). Parallel to the development and implementation of these systems initiated and adopted by state governments, financial institutions have adopted and continuously improved policies to limit the risk of getting involved in a project that would be inconsistent with the aim of sustainable development, for instance, because the project would cause environmental degradation. The instrument of EIA constitutes a central component of these policies. For instance, about ‘75% of new World

42


Bank financed investment projects require an EA report,’76 and the EBRD is committed to apply the Espoo Convention when a project it finances is likely to have transboundary impacts, even if the host country is not a party to the Convention. In view of these developments TEIA must be considered one of the fundamental components of international environmental law anno 2007. As explained in subsection 2.2 above, the discussions of the various TEIA systems (existing and developing) in this book do not justify general conclusions on the effectiveness of the instrument of TEIA in actually protecting the environment; this would require comprehensive and detailed empirical research. However, the discussions do show that a rich practice has developed under most TEIA systems. Although practical experiences have shown that TEIA is complex and that the systems must be continuously evaluated and improved, there are clearly also many positive experiences. In view of these experiences and the advantages of TEIA systems discussed above, such systems are likely to contribute to sustainable development in the areas to which they apply. However, future research on the actual effects of TEIA procedures on environmental protection under the various systems would be valuable. For such research, it would be beneficial to include the experiences of financial institutions. Their systems appear to be more directly driven by the end result, i.e., prevention of adverse effects that may have negative impacts on the reputation of the institution. The book also shows that the process of globalisation of TEIA is likely to continue. States that are currently applying national EIA law to activities with potential transboundary impact in a certain region may, at a certain moment in time, decide to harmonise their practices by the adoption of a TEIA agreement or guidelines for that particular region, or to become part of an already existing TEIA agreement, such as the Espoo Convention. TEIA may also be adopted as one of the components of broader environmental agreements that are newly developed for certain regions, as in the adoption of TEIA as part of the Environmental Protocol of the East African Community. Furthermore, financial institutions will most likely continue to promote this process: by requiring EIA in the process of financing a project, a state government becomes familiar and experienced with applying the instrument of EIA and may thereby be prompted to adopt national EIA legislation, to apply such legislation to transboundary impact situations, to become a party to an existing TEIA convention, or to step into a process of developing a new TEIA agreement for a region. In respect of state governments that are already parties to a TEIA agreement, financial institutions may stimulate governments to implement such agreements 76

See Chapter 12(1).


43

adequately. Moreover, financial institutions may promote globalisation of TEIA directly in their relations with private operators. It is interesting that – apart from development banks – commercial banks that signed the Equator Principles have also adopted EIA as a central instrument of their Social Responsible Investment policy. In view of the long list of signatories of these principles, the scope is even broadened ‘as project financing is almost always handled by a syndicate of banks of which at least some have adopted the Principles.’77 Finally, EIA will probably be developed further for areas beyond national jurisdiction. In view of the developments regarding the global commons, TEIA for these areas will require serious attention in the near future, particularly where the space sector is concerned, for which an international system of EIA has been less developed compared to activities in Antarctica and mining of deep seabed resources. Most likely, these developments are not to be considered in isolation. In fact, they all may have substantial mutual influences. For instance, the experiences in the Antarctic may prompt state governments to think about a similar system for space. The emphasis on monitoring in the deep seabed regime may stimulate the Antarctic Treaty System to ensure that monitoring in the Antarctic will receive more serious attention. The experiences in the Caspian Sea region, based on the Espoo Convention, may stimulate other developing regions and regions in transition to take a similar approach. And we can easily imagine an incremental development whereby the Equator banks would learn from the practice of the EBRD and would closely link the implementation of the Equator Principles with the principles of the Espoo Convention, regardless of whether the states where these banks do business are parties to the Convention or not.

77

Chapter 14(3.5).