Impact Assessment as General International Law
Chapter Forty-Eight
Syllabus topic 2, "Sustainable Development."
Pages 141 to 143 of 663
In one line
Before a State does something that risks serious harm across a border, it must find out what the harm will be, and since 2010 that is a requirement of general international law rather than merely of treaty.
In exam wording: environmental impact assessment is the procedure by which the likely environmental effects of a proposed activity are identified, predicted and evaluated before it is authorised; Principle 17 of the Rio Declaration 1992 requires it as a national instrument for activities likely to have a significant adverse impact, and in Pulp Mills on the River Uruguay the International Court of Justice held that a transboundary assessment is required under general international law where a proposed industrial activity risks significant transboundary harm.
Why the law needed it
Because prevention is an obligation of conduct measured by due diligence, and a State that has not looked cannot claim to have been diligent. Assessment is the evidentiary foundation of every other obligation in this book. Without it there is no way to know whether harm is likely, no basis on which to notify a neighbour, and no standard against which to judge the decision afterwards.
The provisions
Rio Principle 17. 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.
Rio Principle 19. States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect, and shall consult with those States at an early stage and in good faith.
Article 206 of the Law of the Sea Convention 1982. 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 and communicate reports of the results.
Article 14 of the Convention on Biological Diversity 1992. Each Party shall, as far as possible and as appropriate, introduce appropriate procedures requiring assessment of proposed projects likely to have significant adverse effects on biological diversity.
The Espoo Convention 1991 is the specialised instrument and is the subject of its own chapter in Module IV.
The customary rule
Pulp Mills on the River Uruguay (Argentina v. Uruguay), ICJ Reports 2010, p. 14, is worked in full in the chapter on prevention. What it added on this point is the sentence a student must be able to state: a transboundary environmental impact assessment is required by general international law where a proposed industrial activity risks significant transboundary harm.
Impact Assessment as General International Law
Three limits sit inside that holding and each is examinable.
- The trigger is risk of significant transboundary harm, not any risk and not purely domestic harm.
- The Court did not prescribe the content. It said the scope and content of the assessment are for each State to determine in its domestic legislation or in the authorisation process, having regard to the nature and magnitude of the proposal and its likely adverse impact.
- The obligation is continuing. Once operations begin, monitoring of the effects must continue where necessary.
The stages of an assessment
| Stage | What it does | Where it goes wrong |
|---|---|---|
| Screening | Decides whether an assessment is needed at all | Thresholds set so that projects are split to fall below them |
| Scoping | Decides what must be studied | The most contentious impact is scoped out |
| Baseline study | Records the existing state | No baseline, so no later comparison is possible |
| Prediction and evaluation | States the likely effects | Prepared by the proponent's own consultant |
| Alternatives | Considers other options, including doing nothing | Reduced to a formality |
| Mitigation | Proposes measures | Promised and not implemented |
| Public participation and consultation | Hears those affected | A hearing held far away, in the wrong language, on short notice |
| Decision and conditions | Grants or refuses, with conditions | Conditions unenforced |
| Monitoring and audit | Checks the prediction against the outcome | Almost never done |
The right-hand column is what an examiner is looking for in a critical answer. The procedure is sound and its failures are consistent across every jurisdiction.
Worked example
State P plans a coal terminal on an estuary shared with State Q.
- Is an assessment required? Yes, if there is a risk of significant transboundary harm, on Pulp Mills. The estuary is shared, so there plainly is.
- What must it contain? Whatever State P's own law requires, having regard to the nature and magnitude of the project. There is no international content requirement outside a treaty.
- Must Q be told? Yes. Rio Principle 19, and the notification obligation the Court applied in Pulp Mills.
- May Q veto? No. Lake Lanoux holds that consultation is not consent.
- What if P builds without assessing and no harm results? P has still breached the procedural obligation, and on the Pulp Mills precedent a declaration to that effect may be the entire remedy.
- After it opens? The obligation continues as a duty of monitoring.
The Indian machinery, in a sentence
India's assessment requirement is not in an Act but in a notification: the Environment Impact Assessment Notification issued under section 3 of the Environment (Protection) Act 1986, which lists the projects requiring clearance, divides them between the Union and the States, and prescribes screening, scoping, public consultation and appraisal. In Alembic Pharmaceuticals Ltd. v. Rohit Prajapati the Supreme Court held that clearance cannot be granted after the event, and the practice of ex post facto clearance has been repeatedly disapproved. A student should name the notification rather than search for an Act, because there is none.
Impact Assessment as General International Law
What it does NOT mean
It is not a licence requirement. The assessment informs the decision; it does not make it. A project may lawfully be approved despite predicted harm, provided the harm was assessed and weighed.
It does not require a particular method. Pulp Mills expressly left the content to national law.
It does not stop at approval. The duty to monitor continues, which is the half most often forgotten.
Quick revision
- Rio Principle 17 for the national instrument; Principle 19 for notification and consultation.
- Pulp Mills 2010: transboundary assessment is required by general international law where there is a risk of significant transboundary harm; content is for national law; the duty to monitor continues.
- Article 206 of the Law of the Sea Convention; Article 14 of the Convention on Biological Diversity; the Espoo Convention 1991.
- Nine stages, from screening to monitoring, and a characteristic failure at each.
- India: the Environment Impact Assessment Notification under section 3 of the Environment (Protection) Act 1986, not an Act of its own.
Test yourself
1. What exactly did Pulp Mills hold about impact assessment? That a transboundary environmental impact assessment is required under general international law where a proposed industrial activity risks significant transboundary harm, that its scope and content are for national law, and that monitoring must continue once operations begin.
2. Which two stages of an assessment are most often manipulated, and how? Screening, by setting thresholds so that projects are split to fall below them, and scoping, by excluding the most contentious impact from the study.
3. Where does India's assessment requirement come from? The Environment Impact Assessment Notification issued under section 3 of the Environment (Protection) Act 1986. There is no separate Act.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.