SEPARATE OPINION OF JUDGE BHANDARI
INTRODUCTION
1. In the instant case, the Court has been presented with two separate but related disputes that
have arisen between Costa Rica and Nicaragua pertaining to the San Juan River, which serves as
the international boundary between these two nation States.
2. The first dispute, known as the Certain Activities case, deals with, inter alia, the dredging
by Nicaragua of the Lower San Juan River, over which it has sovereign title up to the right bank, in
order to improve the navigability of the said river.
3. The second dispute, known as the Construction of a Road case, is centred around the
construction by Costa Rica within its own territory of a road nearly 160 km in length, which
follows the course of the right bank of the San Juan River for approximately 108 km (Judgment,
paragraph 64).
4. As the Judgment’s analysis explains (Judgment, paragraphs 63-64; 104-105 and
160-161), since both Nicaragua’s dredging of the Lower San Juan River and Costa Rica’s
construction of a road along the right bank of that river are public projects that have occurred near
an international boundary, the possibility of transboundary harm arises in both contexts.
Consequently, in both the Certain Activities and Construction of a Road cases the Applicant argued
that the Respondent did not, contrary to its obligations under public international law, perform an
Environmental Impact Assessment (“EIA”).
5. While I concur with the majority’s conclusion that Costa Rica ought to have produced an
EIA in the Construction of a Road case (Judgment, paragraphs 104-105 and 160-162), I feel the
present Judgment offers a welcome opportunity to expand upon the present state of the law
surrounding EIAs, and to offer insights as to how the body of law governing such instruments may
be complemented so as to provide clearer guidance to nation States contemplating large-scale
public works projects that contain a prospect of transboundary impacts.
6. As I shall discuss at greater length below, the obligation to produce an EIA presently
arises not only under general international law, but has also been codified by various international
treaties and other legal instruments. Regrettably, despite the current widespread acceptance of the
necessity to conduct an EIA where there is a risk of transboundary harm, public international law
presently offers almost no guidance as to the specific circumstances giving rise to the need for an
EIA, nor the requisite content of any such assessment.
7. For these reasons, in the present opinion I intend to offer some suggestions as to how the
public international law standards governing EIAs could be improved. In undertaking this
endeavour, I draw inspiration from the words of Judge Weeramantry in his dissenting opinion to
this Court’s Nuclear Tests II Order:
“This Court, situated as it is at the apex of international tribunals, necessarily
enjoys a position of special trust and responsibility in relation to the principles of
environmental law, especially those relating to what is described in environmental law
as the Global Commons. When a matter is brought before it which raises serious
environmental issues of global importance, and a prima facie case is made out of the - 2 -
possibility of environmental damage, the Court is entitled to take into account the
Environmental Impact Assessment principle in determining its preliminary
1
approach.”
8. In keeping with this sage pronouncement, I shall first examine how the legal instrument of
an EIA fits within the broader history and contemporary régime of international environmental law.
Against this backdrop I shall proceed to a discussion of current trends in public international law
pertaining to transboundary EIAs. Finally, I shall provide some recommendations that in my
respectful view could serve as useful minimum standards for determining the content of
transboundary EIAs under public international law.
B RIEF HISTORY OF THE LAW PERTAINING TO EIA S
9. Over approximately the past half-century remarkable progressive steps have been taken
with regard to international environmental law since the UN Conference on the Human
2
Environment was held at Stockholm in 1972 (“Stockholm Conference”) . One of the reasons for
this evolution is scientific development, in so far as increased technological capacity for scientific
inquiry has heightened the ability of mankind to ascertain the harm it is committing against its own
natural habitat. This is demonstrated most obviously through a greatly intensified focus on climate
3
change over the past twenty years .
10. Some of the driving forces behind the advent and growing acceptance of the need to
conduct EIAs are the concomitant rise in other international environmental law doctrines, such as
the principle of sustainable development, the principle of preventive action, global commons, the
precautionary principle, the polluter pays principle and the concept of transboundary harm.
Principle of sustainable development
11. The principle of sustainable development has been a driving force in international
environmental law for several decades. Indeed, the Stockholm Conference culminated in the
issuance of a comprehensive report recognizing, inter alia, that environmental management is
designed for the purpose of facilitating comprehensive planning that takes into account the side
effects of human activities on the environment . Chapter I of that report consisted of a declaration
(“Stockholm Declaration”) containing 26 principles.
12. Principle 1 of the Stockholm Declaration implicitly embodied the principle of sustainable
development when it stated in relevant part that:
“[m]an has the fundamental right to freedom, equality and adequate conditions of life,
in an environment of a quality that permits a life of dignity and well-being, and he
bears a solemn responsibility to protect and improve the environment for present and
future generations . . .”
1
Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of
20 December 1974 in the Nuclear Tests (New Zealand v. France) Case (New Zealand v. France), Order of
22 September 1995, I.C.J. Reports 1995, p. 345; (“Nuclear Tests II Order”).
The United Nations Conference on the Human Environment (1972) convened by United Nations General
Assembly res. 2398 (XXIII).
See, generally, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7.
4
Report of the United Nations Conference on the Human Environment, p. 28, UN/A/CONF.48/14/Rev.1. - 3 -
The actual term “sustainable development” was coined in a Report prepared in 1987 by the World
5
Commission on the Environment and Development , commonly known as the “Brundlandt
Report” , and has figured prominently in numerous international treaties, legal instruments and
cases applying international environmental law ever since.
13. The notion of sustainable development is said to embody the balancing of two ideas.
The first is the idea the of granting priority to essential needs such as food, clothing, shelter, and
the second is the idea of limitations imposed by the ability of the environment to meet such future
needs . As the term implies, the industrial development and scientific progress taking place in the
world must be done in a manner that takes into account the impact of such activities on the
environment. In fact, in the Gabčíkovo-Nagymaros Project Judgment, this Court discussed this
balancing act in the following terms:
“Throughout the ages, mankind has, for economic and other reasons, constantly
interfered with nature. In the past, this was often done without consideration of the
effects upon the environment. Owing to new scientific insights and to a growing
awareness of the risks for mankind for present and future generations — of pursuit
of such interventions at an unconsidered and unabated pace, new norms and standards
have been developed, set forth in a great number of instruments during the last two
decades. 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.” 8
The principle of sustainable development is thought of as an underlying concern in 9ll negotiations
and discussions of the international community relating to the environment .
Principle of preventive action
14. In addition to sustainable development, the principle of preventive action is another pillar
10
of modern international environmental law . Whereas certain principles of international
environmental law such as sustainable development focus on balancing the often competing needs
of industrial development and environmental protection, the principle of preventive action, by
11
contrast, focuses solely on the minimization of environmental damage . As the term would imply,
the preventive action called for must be done prior to the occurrence of any environmental damage.
This Court has recognized the importance of the principle of preventive action in the
Gabčíkovo-Nagymaros Project Judgment, where it stated that:
5Philippe Sands, Principles of International Environmental Law, 2nd ed., 2003, p. 252.
6
Report of the World Commission on Environment and Development, Our Common Future (1987), p. 43.
7Ibid.
8Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 78, para. 140.
9
Xue Hanqin, Transboundary Damage in International Law, p. 326.
10
Art. 3, International Law Commission Draft Principles on the Prevention of transboundary harm from
hazardous activities, with commentaries (2001), Session 56, UN doc. A/56/10.
11Philippe Sands, Principles of International Environmental Law, 2nd ed., 2003, p. 281. - 4 -
“[t]he 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” . 12
Global commons
15. Central to the principles of sustainable development and preventive action is the core
idea of common custody over the earth’s resources and that stewardship over the environment
cannot end at the border of a nation State. These values of good neighbourliness and co-operation 13
14
are based on the maxim of sic utere tuo et alienum non laedas . Indeed, a logical corollary of the
foundational principle under international law that each nation is sovereign over its own territory, is
that if one nation deleteriously affects the territory of another, certain obligations and/or liabilities
might arise.
16. One expression of this imperative can be found in Principle 24 of the Stockholm
Declaration, which urges the need for such co-operation:
“International matters concerning the protection and improvement of the
environment should be handled in a cooperative spirit by all countries, big and small,
on an equal footing.
Cooperation through multilateral or bilateral arrangements or other appropriate
means is essential to effectively control, prevent, reduce and eliminate adverse
environmental effects resulting from activities conducted in all spheres, in such a way
15
that due account is taken of the sovereignty and interests of all States.”
Precautionary principle
17. The precautionary principle aims to provide guidance in development and application of
international environmental law where there is scientific uncertainty . Although the precautionary
principle is an important one, its status in international law is still evolving. Its core ethos,
however, is captured by Principle 15 of the Rio Declaration:
“In order to protect the environment, the precautionary approach shall be widely
applied by States according to their capabilities. Where there are threats of serious or
irreversible damage, lack of full scientific certainty shall not be used as a reason for
17
postponing cost-effective measures to prevent environmental degradation.”
12Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 78.
13Philippe Sands, Principles of International Environmental Law, 2nd ed., 2003, p. 249; Art. 4, International Law
Commission Draft Principles on the Prevention of transboundary harm from hazardous activities, with commentaries
(2001), Session 56, UN doc. A/56/10.
14“Use your own property in such a way that you do not injure other people’s”, Oxford Dictionary of Law,
7th ed., 2009, 2014 online version.
15
The United Nations Conference on the Human Environment (1972) convened by UNGA res. 2398 (XXIII).
16
Philippe Sands, Principles of International Environmental Law, 2nd ed., 2003, p. 267.
17United Nations Conference on Environment and Development, Rio Declaration on Environment and
Development, A/Conf.151/26 (1992). - 5 -
18. There exists some confusion in the international community with regard to this principle
as it has been provided for in many conventions though in different language. Certain conventions
couch this principle in terms similar to progressive realization of enhanced scientific capabilities
18
and available knowledge . This principle was urged before19he Court by New Zealand (as well as
all five intervening nations) in Nuclear Tests II . However, in that Order the Court did not make
any finding as to the applicability of the precautionary principle. Nearly two decades later, and
despite being urged by New Zealand as an intervening State, the Court did not take into account the
precautionary principle in its analysis during the Whaling in the Antarctic case. This was pointed
21 22
out in the separate opinions of Judge Cançado Trindade and Judge ad hoc Charlesworth .
Polluter pays principle
23
19. The principle of polluter pays might be looked at as a retrospective method of
allocating loss after an incident resulting in transboundary harm has already occurred. This
24
principle could contribute to enhancing economic efficiency in the case of an incident that causes
transboundary harm, by judging the actions of polluters under a strict liability standard of care. As
25
the concept arose from the Organization for Economic Co-operation and Development (“26CD”)
and does not have the status of a principle of general international law , it presently acts as merely
a general guideline of public international law . 27
1International Convention for the Regulation of Whaling 161, United Nations, Treaty Series (UNTS) 1946 signed
at Washington, D.C.; Convention concerning the Protection of Workers against Ionising Radiations (entry into force:
17 Jun 1962), adoption: Geneva, 44th ILC session (22 June 1960).
1Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of
20 December 1974 in the Nuclear Tests (New Zealand v. France) Case (New Zealand v. France), Judgment, I.C.J.
Reports 1995, p. 288.
2Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, I.C.J. Reports 2014,
p. 226.
21
Ibid., pp. 371-375, paras. 60-71; separate opinion of Judge Cançado Trindade.
2Ibid., pp. 455-456, paras. 6-10; separate opinion of Judge ad hoc Charlesworth.
2International Law Commission Draft Principles on the Allocation of loss in the case of transboundary harm
arising out of hazardous activities, with commentaries (2006), p. 145-147, Session 58, UN doc. A/61/10; UN Conference
on Environment and Development, Rio Declaration on Environment and Development, A/Conf.151/26, (1992),
Principles 13 and 16.
24
Alan E. Boyle, “Making the Polluter Pay? Alternatives to State Responsibility in the Allocation of
Transboundary environmental costs” in Francesco Francioni and Tulio Scovazzi (eds.) International Responsibility for
Environmental Harm, pp. 363, 369.
25
OECD Guiding Principles concerning International Economic Aspects of Environmental Policies
26 May 1972 — C(72) 128.
26
Declaration of the Human Environment, Report of the UN Conference on the Human Environment
(Stockholm, 1972), UN doc. A/Conf.48/14/Rev.1; Alan E. Boyle, “Making the Polluter Pay? Alternatives to State
Responsibility in the Allocation of Transboundary environmental costs” in Francesco Francioni and Tulio Scovazzi (eds.)
International Responsibility for Environmental Harm, pp. 363, 369; Brownlie’s Principles of International Law,
James Crawford (ed.), 7th ed., 2008 (OUP), p. 359; Philippe Sands, Principles of International Environmental Law,
2nd ed., 2003, p. 281.
27
Antonio Cassese, International Law, 2nd ed., pp. 492-493. - 6 -
Transboundary harm
20. As the preceding discussion underscores, there are a variety of overlapping principles
when it comes to international environmental law, with distinct approaches and objectives, that
converge upon the common conclusion that nation States owe certain obligations toward the
environment, particularly in a transboundary context. When nation States transgress these
obligations vis-à-vis their neighbours, the resultant consequences may fall under the rubric of
transboundary harm.
21. There exists no single definition of transboundary harm under international law. Though
the Draft Principles relating to prevention of transboundary harm by the International Law
28
Commission (“ILC”) do contain a definition of this concept, the idea of “risk of causing
significant transboundary harm” is quite vague. Harm as per the ILC must be physical and is
limited to persons, property or the environment . However, the accompanying commentary does
provide some clarity in this regard and explains that the idea of risk and harm are not to be isolated,
but thought of in conjunction with each other:
“For the purposes of these articles, ‘risk of causing significant transboundary
harm’ refers to the combined effect of the probability of occurrence of an accident and
the magnitude of its injurious impact. It is, therefore, the combined effect of ‘risk’ and
‘harm’ which sets the threshold.” 30
The ILC also gives guidance on the meaning of the word significant by way of its commentary:
“The term ‘significant’ is not without ambiguity and a determination has to be
made in each specific case. It involves more factual considerations than legal
determination. It is to be understood that ‘significant’ is something more than
‘detectable’ but need not be at the level of ‘serious’ or ‘substantial’. The harm must
lead to a real detrimental effect on matters such as, for example, human health,
industry, property, environment or agriculture in other States. Such detrimental
effects must be susceptible of being measured by factual and objective standards.” 31
22. Transboundary harm has been succinctly described by this Court as “every State’s
obligation not to allow knowingly its territory to be used for acts contrary to the rights of other
States” . However, a review of the various authorities in which the concept is discussed reveals
four common factors present in cases of transboundary environmental harm: firstly, the harm must
be a result of human activity; secondly, the harm must result as a consequence of that human
activity; thirdly, there must be transboundary effects on a neighbouring nation State; and fourthly,
33
the harm must be significant or substantial .
2International Law Commission Draft Articles on the Prevention of transboundary harm from hazardous
activities, with commentaries (2001), Session 56, UN doc. A/56/10.
29
Art. 2 (b), International Law Commission Draft Principles on the Prevention of transboundary harm from
hazardous activities, with commentaries (2001), Session 56, UN doc. A/56/10.
3Commentary 2, accompanying Art. 2 International Law Commission Draft Principles on the Prevention of
transboundary harm from hazardous activities, with commentaries (2001), Session 56, UN doc. A/56/10.
3Ibid., p. 152.
32
Corfu Channel (United Kingdom v. Albania), Merits, Judgment, I.C.J Reports 1949, p. 22.
3O. Schachter, International Law in Theory and Practice (1991), pp. 366-368 as referred in Xue Hanqin,
Transboundary Damage in International Law, p. 4. - 7 -
23. The requirement of a country contemplating a public works project that poses a risk of
transboundary harm to produce an EIA can thus be seen as a tangible manifestation of these
collective requirements that has gained increasing recognition amongst the community of nations.
The Goals and Principles of Environmental Impact Assessment promulgated by the United Nations
Environment Programme (“UNEP”) in 1987, and endorsed by the United Nations General
Assembly that same year (“UNEP Principles”) demonstrate that the rise in the importance of
conducting EIAs has been commensurate with the increase in the possibility of transboundary harm
34
emanating from activities carried out by neighbouring nation States . Moreover, when the
United Nations Conference on Environment and Development, popularly known as the
“Earth Summit”, was held in Rio de Jan35ro in 1992, it issued its Declaration of Environment
Development (“Rio Declaration”) , the obligation to undertake an EIA already existed in many
international law instruments . 36
24. However, despite the burgeoning acceptance of this obligation under international law,
discerning the exact procedural and substantive requirements of an EIA has proven elusive.
Indeed, the present-day régime governing EIAs consists of a patchwork of different international
37 38 39
law instruments, including UNGA res40utions , the UNEP Principles , the Rio Declaration and a
host of multilateral conventions .
25. For example, the Rio Declaration does not dictate the contents of an EIA, but rather
simply states that: “Environmental impact assessment, as a national instrument, shall be
undertaken for proposed activities that are likely to have a significant adverse impact on the
environment and are subject to a decision of a competent national authority.” 41
26. Moreover, the UNEP Principles define an EIA in similarly vague language, describing it
merely as “a process of identifying, predicting, interpreting and communicatin42the potential
impacts that a proposed project or plan may have on the environment” .
34UNEP Goals and principles of Environmental Impact Assessment, UNEP res. GC14/25, 14th Sess. (1987),
endorsed by UNGA res. 42/184 (1987) p. 1.
35UN Conference on Environment and Development, Rio Declaration on Environment and Development,
A/Conf.151/26 (1992).
36Convention on Biological Diversity, 1760 UNTS, p. 79, signed on 5 June 1992 at Rio de Janeiro; UN
Convention on Laws of the Sea, 1833 UNTS, p. 320, signed on 10 December 1982 at Montego Bay.
37
Co-operation between States in the Field of the Environment, GA res. 2995 (XXVII), UNGAOR 27th Sess.,
Supplement No. 30 (1972), para. 2.
38
UNEP Principles on Conservation and Harmonious Utilization of Natural Resources Shared by Two or More
States, 17 International Legal Materials (ILM) 1094, UN doc. UNEP/IG.12/2 (1978), Principle 4; UNEP Goals and
Principles of Environmental Impact Assessment, UNEP res. GC14/25, 14th Sess. (1987), endorsed by UNGA
res. 42/184, UNGAOR 42nd Sess., UN doc. A/Res/42/184 (1987).
39UN Conference on Environment and Development, Rio Declaration, 14 June 1992, 31 ILM 874,
UN doc. A/conf.151/5/Rev. 1, Principle 17.
40Convention on Biological Diversity, 1760 UNTS, p. 79, signed on 5 June 1992 at Rio de Janeiro;
UN Convention on the Law of the Sea, 1833 UNTS, p. 320, signed on 10 December 1982 at Montego Bay.
41UN Conference on Environment and Development, Rio Declaration, 14 June 1992, 31 ILM 874, UN
doc. A/conf.151/5/Rev. 1, Principle 17.
42UNEP Principles on EIA, p. 1. - 8 -
27. Another pertinent example is the Convention on Biological Diversity (“CBD”) , also an 43
44
outcome of the Earth Summit at Rio de Janeiro , to which both Parties in the present case are
signatories. It contains the requirement to conduct an EIA in situations giving rise to “significant
adverse effects on biological diversity” 45 but does not provide any further elucidation as to the
practical implications of this responsibility.
28. Finally, in the Pulp Mills Judgment of 2010, upon which the present Judgment has
placed considerable emphasis, this Court noted:
“a practice, which in recent years has gained so much acceptance among States that it
may now be considered a requirement under general international law to undertake an
environmental impact assessment where there is a risk that the proposed industrial
activity may have a significant adverse impact in a transboundary context, in
particular, on a shared resource. Moreover, due diligence, and the duty of vigilance
and prevention which it implies, would not be considered to have been exercised, if a
party planning works liable to affect the régime of the river or the quality of its waters
did not undertake an environmental impact assessment on the potential effects of such
works.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
The Court also considers that an environmental impact assessment must be
conducted prior to the implementation of a project. Moreover, once operations have
started and, where necessary, throughout the life of the pro46ct, continuous monitoring
of its effects on the environment shall be undertaken.”
However, in the same section of that Judgment, the Court opined that
“it is the view of the Court that it is for each State to determine in its domestic
legislation or in the authorization process for the project, the specific content of the
environmental impact assessment required in each case, having regard to the nature
and magnitude of the proposed development and its likely adverse impact on the
environment as well as to the need to exercise due diligence in conducting such an
assessment” . 47
29. Thus, we see that while the Pulp Mills Judgment elevated the practice of conducting an
EIA to an imperative under general international law when certain preconditions are met, at the
same time it allowed for a renvoi to domestic law in terms of the procedure and content required
when carrying out such an assessment. In view of the paucity of guidance from the Court and other
sources of international law, it could plausibly be argued there are presently no minimum binding
standards under public international that nation States must follow when conducting an EIA.
431760 UNTS, p. 79, signed on 5 June 1992 at Rio de Janeiro.
44
UN Conference on Environment and Development, Rio Declaration on Environment and Development,
A/Conf.151/26 (1992).
451760 UNTS, p. 79, signed on 5 June 1992 at Rio de Janeiro, Art. 14 (1).
46Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010 (I), pp. 83-84,
paras. 204-205.
47
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010 (I), p. 83, para. 205. - 9 -
30. One reason for the lack of clarity as to what exactly a nation State must do under
international law to discharge its burden of conducting an EIA under these various authorities could
be that the extent of the obligations arising under such instruments are difficult to define with
precision. Some have suggested that th48 lack of precision is attributable to the fact that such
assessments are a policy instrument . Whatever the reason, the situation as it currently stands is
less than ideal.
BASIC REQUIREMENTS OF AN EIA UNDER CONTEMPORARY
PUBLIC INTERNATIONAL LAW
31. To discern the current state of the law on this point, one must endeavour to assimilate the
various international law instruments that impose upon nation States an obligation to conduct an
EIA and synthesize the obligations imposed thereunder. Notwithstanding the lack of guidance
under general international law and other binding or hortatory instruments, as the present Judgment
at paragraphs 147-155 demonstrates, there are three cumulative stages that must be fulfilled when it
comes to assessing the impact of a proposed project in a case of possible transboundary harm. The
first stage is to conduct a preliminary assessment measuring the possibility of transboundary harm.
In the present case, we see the Court has looked at the magnitude of the road project and local
geographic conditions in assessing that a preliminary assessment by Costa Rica was warranted as to
the possibility of harm to the San Juan River (Judgment, paragraph 155). If a preliminary
assessment determines that there is a risk of significant transboundary harm, then the State has no
choice but to conduct an EIA. The actual production of this document constitutes the second stage
of the overall process, and entails certain corollary procedural obligations such as the duty to notify
and consult the affected neighbouring nation State (Judgment, paragraph 168). The third and final
stage of this process is that of post-project assessment (Judgment, paragraph 161). This in keeping
with the Court’s reasoning in the Pulp Mills Judgment that “once operations have started and,
where necessary, throughout the life of the project, continuous monitoring of its effects on the
49
environment shall be undertaken” .
32. In my respectful view, what appears to be missing in this analysis by the Court is what
specific obligations arise during stage two of this process. In attempt to fill this lacuna, the present
opinion will offer suggestions as to appropriate minimum standards that should be fulfilled by any
nation State conducting an EIA. In this regard, the Convention on Environmental Impact
Assessment in a Transboundary Context (“Espoo Convention”) 50 drafted by the United Nations
Economic Commission for Europe (“UNECE”) provides, in my view, an exemplary standard for
the process to be followed when conducting an EIA. In making this statement, I readily concede
that the Espoo Convention is primarily a regional instrument designed to regulate transboundary
harm in a European context. Because international law is grounded in the bedrock principle of
consent between sovereign nation States, and bearing in mind that the present case arises in the
geopolitical context of Latin America, I am acutely aware that one cannot simply interpose the
obligations arising under this regional treaty to non-signatories from other parts of the world.
Indeed, criticism has been levied against the Espoo Convention as it derives its obligations from the
51
domestic legislation of highly developed nations, which reduces the probability of ratification .
4Neil Craik, The International Law of Environmental Impact Assessment (CUP, 2008) pp. 3-6.
49
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010 (I), pp. 83-84,
para. 205.
5UNTS, Vol. 1989, p. 309.
51
John H. Knox, Assessing the Candidates for a Global Treaty on Transboundary Environmental Impact
Assessment, 12 NYU Envtl. L.J. 153 (2003). - 10 -
33. Taking such valid criticism into account, but also noting that the Espoo Convention
52
contains a provision that allows for non-European nation States to join it , I believe that it is
helpful to consider the Espoo Treaty as a standard that nation States should strive toward, as it
contains novel and progressive guidelines that the community of nations would be well served to
treat as persuasive authority in creating a more comprehensive global régime regarding the required
content of transboundary EIAs under public international law. If the international community were
to come together for the purpose of putting in place a convention dealing with transboundary EIAs,
I propose that the Espoo Convention would constitute a very useful starting point.
ESPOO C ONVENTION : A BRIEF OVERVIEW
34. I shall now consider what are in my opinion certain important characteristics of the
Espoo Convention that lay out what may be considered “best practices” in carrying out
transboundary EIAs.
35. Article 2 (6) of the Convention places heavy emphasis on the need for public
participation of the likely affected population(s). The form that this obligation takes under the
Convention requires that the State proposing the project allow for the participation of not only its
own affected population but that of the potentially affected neighbouring State as well. The notion
that international law has begun to pay more attention to individuals is demonstrated by the
requirement of public participation . This concept of public participation expands upon prior
54
pronouncements contained in Principle 10 of the Rio Declaration . However, it should be noted
that the notion that there is a duty to consult affected populations was rejected by the Judgment of
this Court in the Pulp Mills case .5
36. Article 3 of the Convention requires the nation proposing a project to notify a potentially
affected neighbouring nation State regarding any proposed activity that is likely to cause a
“significant adverse transboundary impact”. There is, naturally, great debate about the extent of
the obligation that this phrase entails. A country proposing a project might argue that any impact is
neither significant nor adverse, and thus escapes the ambit of Article 3. In fact this seems to be a
similar threshold provided for by the Judgment, i.e., “risk of significant adverse impact”
(Judgment, paragraph 167). This provision also lays down all the information one State must
provide to another. Article 3 (7) stipulates that if there is a question that an activity will have a
significant impact or not then the question is to be settled by an inquiry commission.
5Report of the Second Meeting [of the Parties to the Convention on Environmental Impact Assessment in a
Transboundary Context] UN doc. ECE/MP.EIA/4, p. 144, Ann. XIV (2001).
5Simon Marsden, “Public Participation in Transboundary Environmental Impact Assessment: Closing the Gap
between international and Public Law”, in Brad Jessup and Kim Rubenstein, Environmental Discourses in Public and
International Law, 238.
54
Principle 10:
“Environmental issues are best handled with participation of all concerned citizens, at the relevant
level. At the national level, each individual shall have appropriate access to information concerning the
environment that is held by public authorities, including information on hazardous materials and activities
in their communities, and the opportunity to participate in decision-making processes. States shall
facilitate and encourage public awareness and participation by making information widely available.
Effective access to judicial and administrative proceedings, including redress and remedy, shall be
provided.”
5Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010 (I), paras. 215-219;
(“The Court is of the view that no legal obligation to consult the affected populations arises for the Parties from the
instruments invoked by Argentina.” (Para. 216.)) - 11 -
37. Article 5 of the Convention requires consultations with the affected State, to give
recommendations to the State of origin methods for the reduction or the elimination of the harmful
impact. This allows for a more amicable settling of disputes and problems arising out of a
particular project.
38. Article 6 of the Convention outlines that a final decision regarding a proposed project is
to be made with due regard to the conclusion of the EIA. This provision requires transmitting the
final decision to the affected party, along with reasons and considerations on which a decision is
based.
39. Article 15 of the Convention discusses the settlement of disputes if they arise between
parties. The dispute might either be settled by way of arbitration or by this Court. Regrettably,
there is no specific provision dealing with reparations or compensation of any kind.
40. Importantly, Appendix I has a non-exhaustive list of activities that require conducting an
EIA, in the manner prescribed under Appendix II of the Convention. Thus, for the purpose of
ascertaining minimum requirements it is helpful to refer to Appendix II of the Convention as it lays
down what the content of an EIA must be. Additionally, Appendix III provides guidance in
deciding whether an activity would fall within the list provided in Appendix I.
SUGGESTED MINIMUM STANDARDS FOR EIA UNDER
INTERNATIONAL LAW
41. This part outlines certain minimum standards to be followed in cases where there is no
domestic legislation that guides an EIA. These minimum standards reflect in large part my affinity
toward the ambitious approach taken in the Espoo Convention. However, rather than using the
sometimes onerous obligations arising from that treaty as the requisite minimum standard for every
country, in every context, I have instead laid out what, in my considered opinion, ought to be
adopted as the lowest common denominator while conducting an EIA. These minimum standards
may be broken down into procedural and substantive obligations. In my opinion procedural
obligations of an EIA would relate to when and under what circumstances such an assessment must
be carried out, whereas substantive obligations refer to what must be done by a nation State when
conducting an EIA.
Procedural obligations
42. Procedural obligations arising out of the obligation to perform an EIA arise out of
questions of when an EIA is to be conducted. Presently, an EIA is required to be conducted when
there is “risk of significant adverse impact” (Judgment, paragraph 167). A nation State
contemplating a project might claim that the risk of the harm is not significant and therefore there
exists no obligation to conduct an EIA. However, to avoid the possibility that countries may abuse
their discretion in labelling certain activities as environmentally benign, I suggest that the best
approach to take lies in the Espoo Convention, which lays down certain types of industries for
which there is an automatic requirement to conduct an EIA if the said activities are being proposed
near an international border. To that end, I recall my observation above that Appendix 1 to the - 12 -
Espoo Convention lists a number of activities that require an EIA per se . However, the fact that a
project does not appear on this list does not mean it cannot be subject to an EIA. For instance,
there might be other types of activities not contemplated within Appendix 1 of the
Espoo Convention, but which might still produce dangerous pollutants or effluents as a by-product.
Those activities must also be recognized as harmful, thus giving rise to EIA obligations. To this
end, Appendix III of the Espoo Convention contains general criteria to assist in the determination
of the environmental significance of various activities.
43. Once it is established that a certain activity requires that an EIA be carried out, nation
States may invoke certain exemptions that would relieve them of their obligation to conduct an
EIA. Such pleas may include natural disasters, nuclear disasters, terrorism, internal disturbance or
emergency, among others. If such a claim is made by a nation it has to be well substantiated and
the burden of proof, which would lie with the country proposing the project, must be high.
44. It should be remembered that even private companies might propose projects near an
international border. It is then the responsibility of the country in whose territory the project is
being proposed to provide an EIA to a potentially affected country. Essentially, if a private project
that falls within one of the above mentioned industries listed at Appendix 1 to the
Espoo Convention, or is part of an industry that creates pollutants or dangerous effluents, then the
responsibility to ensure that an EIA has been completed and duly transmitted to the neighbouring
nation State that might be affected, and the host country’s international responsibility should be
invoked, irrespective of the fact that the project falls within the domain of private enterprise.
Substantive obligations
45. As noted above, the required content of an EIA has not specifically been laid down under
public international law. However, by referring to the above-referenced documents it is possible to
distil certain minimum criteria which must be adhered to while performing an EIA.
46. For example, UNEP Principle 4 stipulates certain minimum contents of an EIA:
“(a) A description of the proposed activity;
561. Crude oil refineries; 2. Thermal and nuclear power stations; 3. Any type of work that requires or uses
nuclear elements (for any purpose, as fuel, for storage, or as fissionable material); 4. Smelting of cast iron and steel;
5. Any type of work that requires or uses asbestos for any purpose; 6. Integrated chemical installations; 7. Construction
of motorways, express roads, railways, airports with runways of more than 2,100 m; 8. Large-diameter pipelines for the
transport of oil, gas or chemicals; 9. Trading ports and also inland waterways and ports for inland-waterway traffic
which permit the passage of vessels of over 1,350 metric tons; 10. Waste-disposal installations for the incineration,
chemical treatment or landfill of toxic and dangerous wastes, or if it is non-hazardous waste then chemical treatment of
the same waste with a capacity increasing 100 metric tonnes per day; 11. Dams and reservoirs; 12. Groundwater
abstraction activities or artificial groundwater recharge schemes where the annual volume of water to be abstracted or
recharged amounts to 10 million cubic metres or more; 13. Pulp, paper and board manufacturing of 200 air-dried
metric tons or more per day; 14. Major quarries, mining, on-site extraction and processing of metal ores or coal;
15. Offshore hydrocarbon production, extraction of petroleum and natural gas for commercial purposes where the amount
extracted exceeds 500 metric tons/day in the case of petroleum and 500,000 cubic metres/day in the case of gas;
16. Major storage facilities for petroleum, petrochemical and chemical products.17. Deforestation of large areas;
18. Works for the transfer of water resources between river basins; 19. Waste-water treatment plants with a capacity
exceeding 150,000 population equivalent; 20. Installations for the intensive rearing of poultry or pigs with more than:
85,000 places for broilers, 60,000 places for hens, 3,000 places for production pigs (over 30 kg), or 900 places for sows;
21. Construction of overhead electrical power lines with a voltage of 220 kV or more and a length of more than 15 km;
22. Major installations for the harnessing of wind power for energy production (wind farms). - 13 -
(b) A description of the potentially affected environment, including specific
information necessary for identifying and assessing the environmental effects of
the proposed activity;
(c) A description of practical alternatives, as appropriate;
(d) An assessment of the likely or potential environmental impacts of the proposed
activity and alternatives, including the direct, indirect, cumulative, short-term and
long-term effects;
(e) An identification and description of measures available to mitigate adverse
environmental impacts of the proposed activity and alternatives, and an assessment
of those measures;
(f) An indication of gaps in knowledge and uncertainties which, may be encountered
in compiling the required information;
(g) An indication of whether the environment of any other State or areas beyond
national jurisdiction is likely to be affected by the proposed activity or
alternatives;
(h) A brief, non-technical summary of the information provided under the above
headings.”
Notably, these criteria are not as burdensome as the requirements of the Espoo Convention.
The Espoo Convention requires certain additional information to be included in an EIA, such as the
purpose of the project . It also requires that alternatives to the project be proposed, including the
58
alternative that no action will be taken . Another way in which the Espoo Convention increases
the substantive obligations of a country contemplating a project is by requiring “an explicit
indication of predictive methods and underlying assumptions as well as all the environmental data
used” . Finally, the Espoo Convention imposes the further hurdle that an EIA must contain an
60
outline of how post-project assessment is to be conducted .
Conclusion
47. As I have detailed throughout the present opinion, the current state of international
environmental law is lamentably silent on the exact procedural steps and substantive content that
are required when a situation of potential transboundary harm gives rise to the obligation of a
nation State to produce an EIA. In my view, it is incumbent upon the international community to
come together and develop a sound, pragmatic and comprehensive régime of EIA that rectifies this
problem. The suggestions I have made during the course of this opinion are in keeping with the
principles of sustainable development, preventive action and global commons and reflect the
bedrock international law values of consensus, co-operation and amicable relations between
nations.
57
The Espoo Convention, App. II (a).
5Ibid., App. II (b).
5Ibid., App. II (f).
60
Ibid., App. II (h). - 14 -
48. In my considered opinion, the above minimum standards should be reflected in a
comprehensive international convention with global reach, given the fact that the concept of EIA is
a general principle of international law applicable to all nation States.
(Signed) Dalveer B HANDARI .
___________
Separate opinion of Judge Bhandari