3.2 Environmental impact assessments outside of the UNCLOS regime
This thesis does not solely focus on EIAs, but it is deemed natural and necessary to start this chapter with an overview of the institutionalized EIA processes seen as relevant for a comprehensive understanding of a flag State’s responsibility with respect to marine biodiversity in the ABNJ. The international legal obligation to conduct EIAs reflects the recognition that environmental harm may extend beyond national borders and therefore requires anticipatory evaluation(1)Ibid n104, Pulp Mills, paragraph 204 . EIA processes are adaptable to a wide range of contexts, and this adaptability makes it difficult to define international EIA obligations in a uniform manner, given the diversity of international instruments in which such obligations appear. As Craik observes, “EIA commitments will not occur in a vacuum but will reflect general principles of international environmental law”(2)Ibid n130, a point that helps explain why EIA obligations have developed differently across international instruments and sectors.
EIAs are incorporated in legally binding international instruments such as the CBD and UNCLOS, but also under non-binding international instruments such as the Rio Declaration from 1992. Craik points out that the persuasive value of the different obligations or commitments varies based on the instruments(3)Ibid n130, in addition to detailing that many treaty-based EIA obligations target specific environmental problems(4)Ibid n130, page 102. Article 17 of the Rio Declaration of Environment and Development in 1992 set out that States were to undertake EIAs “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.”(5)Article 17 of the Rio Declaration (1992) Irrespective of the fact that the Rio Declaration is not a legally binding instrument but rather a political declaration, it has been argued that the inclusion of Article 17 spoke of the relevance of the principle(6)Elisa Ruozzi, “The Obligation to Undertake an Environmental Assessment in the Jurisprudence of the ICJ: A Principle in Search of Autonomy” (2017) European Journal of Risk Regulation, vol. 8 issue 1. This understanding aligns with Craik’s argument that the “prominence and consensus surrounding their adoption have a strong persuasive value”(7)Ibid n130, reflecting the idea that the strength of EIA commitments derives not only from their formal legal status, but also from the level of agreement among States and the principles of environmental protection embodied.
Binding international obligations requiring States to conduct a type of EIA are contained in various international legal instruments. The 1972 Stockholm Declaration(8)Declaration of the United Nations Conference on the Human Environment, adopted at Stockholm, 16 June 1972 (Stockholm Declaration). serves as the starting point for the present analysis of international obligations concerning the assessment of the environmental impacts of activities. Although the Stockholm Declaration did not include a direct obligation on States to conduct EIAs, it did recognize the importance of assessing the impacts of human activities on the environment and it created a framework for international cooperation regarding environmental matters. Developing countries raised concerns about the impact of EIA processes on the right to development during the negotiation of the Stockholm Declaration(9)Ibid n130, page 91. In the end, the Stockholm Declaration contains a principle affirming the State’s “sovereign right to exploit their own resources pursuant to their own environmental 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 the limits of national jurisdiction."(10)Principle 21 Stockholm Declaration. The principle highlights the obligation on States to prevent environmental harm arising from activities within their jurisdiction or control, including harm affecting the environment of other States and ABNJ, and it has played an important role in shaping the evolution of subsequent EIA obligations.
The next significant development in terms of the evolution of international EIA obligations is the Espoo Convention on Environmental Impact Assessment in a Transboundary Context (‘Espoo Convention’)(11)Convention on Environmental Impact Assessment in a Transboundary Context (adopted 25 February 1991, entered into force 10 September 1997, Espoo) 1989 UNTS 309 (Espoo Convention) from 1991. The Espoo Convention highlights that harm to the environment tends to transcend national borders and defines EIAs as “a national procedure for evaluating the likely impact of a proposed activity on the environment”(12)Article 1 Espoo Convention. A key feature of the Espoo Convention is that, through its use of the “impact”(13)Article 2(1) Espoo Convention, it distinguishes itself from later EIA obligations. The Espoo Convention’s application spans beyond a single/specific environmental problem, qualified by the requirement that the problem must have a transboundary effect. While the provision allows for an application across a variety of environmental problems, some has argued that the wording is so ambiguous as to lack a substantive obligation.(14)Ibid n130, page 103, referencing John Knox ‘‘The Myth and Reality of Transboundary Environmental Impact Assessment” (2002) 96 AJIL 291 at 305. Craik goes on to point out that “divorcing the duty to prevent transboundary harm from liability does not rob the provision of its prescriptive force”(15)Ibid n130, where he is understood as reading the Espoo Convention as a preventive instrument, rather than one aimed at attaching liability for harm that has already occurred. To ensure that all States uphold their responsibilities of notification and consultation, the Espoo Convention sets out minimum requirements through specific requirements. Article 2(1) says that “The Parties shall, either individually or jointly, take all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impact from proposed activities”(16)Article 2(1) Espoo Convention. Through its references to “proposed activities” and to measures aimed at “prevention, reduction, and control”, the Espoo Convention’s forward‑looking and preventive orientation is underscored, while its focus on “significant adverse transboundary environmental impact” confirms the broad application across different categories of activities where a risk of transboundary harm exists(17)Article 2(1) Espoo Convention.
The adoption of the Rio Declaration marked another important step in the development of international environmental law, notably through its articulation of the principle of sustainable development. Although the Rio Declaration does not impose a legally binding obligation on States to conduct EIAs, Principle 17 affirms the importance of undertaking national EIAs and underscores their role in promoting sustainable development. Subsequent developments in the international legal framework for EIAs include the CBD. While the CBD does not explicitly require the conduct of EIAs as such, it encourages States Parties to integrate considerations relating to biodiversity conservation and sustainable use into environmental assessment processes(18)Article 14(1)(a)-(b) CBD.
Another development came with the Convention on Access to Information, Public Participation in Decision‑Making and Access to Justice in Environmental Matters (‘Aarhus Convention’)(19)Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (adopted 25 June 1998, entered into force 30 October 2001, Aarhus) 2161 UNTS 447 (Aarhus Convention). However, since its main contribution stems from strengthening procedural rights relating to access to information, public participation, and access to justice, rather than in shaping the substantive content of EIA obligations or flag State responsibilities, it falls outside the core focus of this thesis. But the Aarhus Convention compliments the requirement from the Espoo Convention through its focus on informing the public of proposed projects where there is a potential for a large impact on the environment and including public participation(20)Articles 1, 4-9 Aarhus Convention. A final development deemed worth mentioning, is the Paris Agreement (Paris Agreement on Climate Change) 2015(21)Paris Agreement to the United Nations Framework Convention on Climate Change (adopted 12 December 2015, entered into force 4 November 2016) 3156 UNTS 79 (Paris Agreement). The Paris Agreement, adopted under the United Nations Framework Convention on Climate Change (‘UNFCC’)(22)United Nations Framework Convention on Climate Change, adopted at New York, 9 May 1992 (UNFCCC), brought about another layer of international legal obligations that can be argued to illustrate the importance of EIAs. While the Paris Agreement does not address EIAs directly, its emphasis on mitigation and emissions reduction has contributed to an increased focus at the national level on evaluating the climate implications of proposed activities, which in turn is important to enable informed decision-making by States(23)Articles 2, 4 and 9 Paris Agreement, where adaptation is a core objective..
This section concludes with the acknowledgement of the role of customary international law in the development of EIA obligations, primarily through the jurisprudence of the International Court of Justice (‘ICJ’). Through its case law, the ICJ has clarified that the obligation to conduct an EIA forms part of States’ due‑diligence obligations to prevent significant transboundary environmental harm(24)See Gabčíkovo–Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep 7 (25 September 1997), and Pulp Mills case. . However, the present thesis does not engage in a detailed analysis of the judicial interpretation arising from these cases, given its focus on flag State obligations in relation to marine biodiversity in the ABNJ. Nonetheless, it has been demonstrated that the concept of EIA has evolved over recent decades through a combination of international instruments and judicial interpretation, developing from broadly framed environmental principles into more concrete procedural obligations for States. The increasing incorporation of biodiversity and climate‑related considerations reflects a growing recognition of the need to assess long‑term and transboundary environmental impacts already at the planning stage. When seen together, these developments indicate that the obligation on States to assess environmental impacts prior to authorising major projects or activities is now a widely recognised element of international environmental law, reflecting a broader commitment to environmental protection and sustainable development.