I. Introduction

    In today's world, where rivers flow through numerous nations and ecosystems span continents, the environmental consequences of human actions can extend far beyond the site of origin. From industrial waste poisoning rivers downstream to air pollution choking cities hundreds of miles away, the line between “our problem” and “their problem” is blurring. This chilling reality of transboundary harm highlights the vital role of Environmental Impact Assessment (EIA) as a shield protecting our environment.

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        II. Transboundary harm and EIA in international environmental law 

        1. Transboundary harm and its impacts

        Transboundary harm refers to “large-scale industrial, agricultural, and technical activities conducted in the territory of one country that cause detrimental effects in territories other than the state of origin” (United Nations, 2001). The concept of transboundary harm emphasizes the importance of boundary-crossing impacts, leading to international repercussions and global regulations (Xue, 2003). 

        Transboundary harm affects the environment on a large scale and disrupts ecosystems that span national borders. This can include the depletion of shared land, water, and air resources; deforestation; and biodiversity degradation. Its consequence has detrimental impacts on humans. People living in areas affected by transboundary pollution may experience respiratory illnesses, waterborne diseases, and other severe sanitation and health. Moreover, the costs of cleaning up transboundary environmental damage can be significant, further straining national budgets, and transboundary impacts on agriculture and tourism can also lead to economic losses (Jain, 2008).

        2. What is EIA?

        EIA stands for Environmental Impact Assessment – a systematic tool that analyzes both the advantageous and detrimental environmental consequences of a proposed project, program, or policy. It is the process of identifying, predicting, and evaluating the potential socio-economic factors a project may have on the environment, while also anticipating environmental repercussions and proposing solutions to minimize these impacts, even after mitigation steps have been taken (Secretariat of the Convention on Biological Diversity, 2010).

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        III. EIA Obligations  

        1. Legal Status of EIA Obligations

      Under general international law, the International Court of Justice (the ICJ) has recognized that undertaking an EIA is a State’s obligation when the planned industrial activities pose a risk of “a significant adverse impact in a transboundary context, in particular, on a shared resource” (Argentina v. Uruguay, 2010, para. 204). The obligation was later upheld by the Court that it was not limited to industrial activities but extended to any proposed activities that might have similar detrimental impacts on the environment (Costa Rica v. Nicaragua, 2015, para. 104).

        To identify the obligation to undertake an EIA as a customary international law, there is a need to assess State practice and opinio juris (Malcolm Shaw, 2017). These aforementioned cases do not satisfy the two requirements for an EIA obligation to become a customary rule. Yet, this judicial jurisdiction about the EIA’s legal status does not spark any debates or controversies since the EIA is widely acknowledged as a legal obligation (Gillespie, A., 2008). State practices regarding EIA obligation first appeared in the 1969 National Environmental Policy Act of the United States (NEPA). Since then, the requirement of EIA has been endorsed in the domestic law of nations worldwide, including the United Kingdom, Canada, China, Japan, India, Australia, and other countries (UN Environment, 2018). At the international level, this obligation is outlined in several multilateral treaties, namely Article 14 of the Convention on Biological Diversity (CBD), Articles 4 and 5 of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention), and Article 206 of the United Nations Convention on the Law of the Sea (UNCLOS).

        The general practice of EIA obligation is underpinned by several underlying reasons. Due to the irreversible nature of the environmental damage and the limitations in the reparation mechanism, protecting the environment requires a certain level of vigilance and prevention (Hungary v. Slovakia, 1997, para. 140). This gives rise to the State's duty of prevention as a rule of custom requiring States to evaluate the risk posed by the planned activity before engaging in it, which ends up with conducting an EIA (Costa Rica v. Nicaragua/ Nicaragua v. Costa Rica, 2015, para. 104). This could be the reason why international tribunals did not adopt the traditional method to prove the EIA obligation’s legal status, given that the obligation has gained the nature of customary international law at the beginning (Song, Y., 2022).

        2. Content of EIA 

       While the obligation to conduct an EIA is generally accepted, there have been various disputes over how thoroughly the environmental impacts have been assessed (Malaysia v. Singapore, 2003, para. 22). Up to now, the scope and content of EIAs are not specified in general international law (Song, Y., 2022).

        In Pulp Mills Case, the Court held 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…” (Argentina v. Uruguay, 2010, para. 205). This judgment made two important points. First, an EIA does not need to be explicitly required by law, instead, it can be required as part of the authorization process (Boyle, A., n.d.). What matters is that there exists some means to ensure the conduct of EIA. Second, the “specific content” of EIA is left to each State to determine through domestic regulations, yet, it still has to follow “the nature and magnitude” of the proposed project and its potential adverse impacts on the environment (Boyle, A., n.d.). Such assessment should also include the effects of the activity on persons and property, as well as on the environment of other States (ILC, 2001).

        It is apparent that under international law, the minimum standard for an EIA’s content to be met includes the evaluation of possible effects on people, property, and the environment of other states likely to be affected, regardless of anything else that may be required by national law (Boyle, A., n.d.).

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         IV. EIA’s importance as a preventive measure

        As damages to nature and the environment are usually irreversible or would demand a prolonged period to be alleviated, precautionary and preventive measures are often required before activities that may have harmful impacts on the environment take place. Therefore, EIAs are not merely an on-paper plan, they are an essential preventative measure that protects our environment from the possible damages of badly planned projects.

        First, unlike a responsive program for identified environmental threats, EIA serves as an early warning system because a State is obliged to exercise due diligence within its borders (ILC, 2001). Before engaging in activities with the possibility of harmful impacts on the environment, EIA imposes the responsibility of due diligence, which requires States to evaluate the risk posed by such activities (Costa Rica v. Nicaragua, 2015, para. 104). By recognizing potential problems at the start of a project, stakeholders have various options to avert these issues, such as developing relief plans, adjusting projects, or even exploring alternative locations. Supposing an EIA can detect threats, the obligation of due diligence under the EIA also expects States to notify and seek consultation with other States that may be concerned by the anticipated risks (Costa Rica v. Nicaragua, 2015, para. 104). The involved States would then hold discussions to propose suitable solutions for every party. Accordingly, EIA results in a proactive approach which can considerably reduce a project’s negative impacts on nature and the environment.

        Second, if new problems emerge when a proposed activity is being executed, States are more likely to mitigate the impact of those problems because of EIA obligations. This is because the requirement for EIAs is a continuous procedure, not a one-off requirement. EIAs usually include tracking the project until its completion, allowing detection of unanticipated issues as they appear. In the Pulp Mills Case, the Court stated that “once operations have started and, where necessary, throughout the life of the project, continuous monitoring of its effects on the environment shall be undertaken.” (Argentina v. Uruguay, 2010, para. 205). This means that the EIA demands countries to constantly observe the ongoing plan and detect abnormalities or possible threats that might not have been apparent during the initial assessment. 

        Altogether, EIA proves to be an effective precautionary measure as it provides a compulsory procedure for States to follow before the commencement of programs. This procedural obligation ensures thorough monitoring and timely disclosure of transboundary threats, thus promoting informed decision-making among concerned States. However, each State carries out EIA differently, and to guarantee total effectiveness of it, several difficulties need to be overcome. 

 

        V. Limitations of EIA

        While EIA has been considered an innovation in preventing transboundary damage, there remain several limitations. These challenges act as an Achilles heel, potentially hindering EIA’s effectiveness. 

       One major difficulty lies in weak EIA regulation and enforcement mechanisms. Weak enforcement was reflected through late implementation, poor consultation, inadequate consideration of alternatives, and lack of information disclosure (World Bank, 2006). Many countries still do not have specific regulations regarding EIA or a systematic procedure of EIA’s implementation, typically some Islamic countries. The weakness in implementation among Islamic nations can be attributed to many reasons, one of which is personnel shortage versus the number of EIA projects (Mahmud, A. R., 2022). 

      Another challenge is the insufficiency of practitioners' competencies and skills. Both management and policy planners might lack the necessary understanding of the environmental framework to decide on which environmental impacts require assessment (PAS, n.d.). This can affect the quality of EIA reports in terms of data analysis, scope of the study, presentation, and comprehensiveness of the proposed projects (Mahmud, A. R., 2022). 

       In addition, undertaking a thorough EIA might be costly and time-consuming with many steps. Delays in the evaluation phase can cause project postponements and cost increases, which create extra burden for project proponents (Cypress, 2023). This leads to a dull reality that many proponents are unwilling to pay for the EIA and tend to hire consultants who charge them the least, which can ultimately affect the EIA’s quality (Doberstein, 2003).

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        VI. Conclusion

      EIA stands as an important bulwark against all the threats of transboundary environmental harm. Since the obligation to conduct EIA is a customary rule, all States are required to follow with all their capacities. While challenges remain, through continuous efforts to strengthen the legal framework, as well as foster cross-border collaboration, EIA can be further sharpened into a more powerful instrument in preventing transboundary harm.

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        Author:

1. Ho Quynh Trang, International Law intake 48, DAV

2. Nguyen Hai Yen, International Communication intake 48, DAV

3. Nguyen Vu Gia Linh, Royal Melbourne Institute of Technology

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        Reference:

1. Secretariat of the Convention on Biological Diversity. (2010, April 27). What is impact assessment?. Convention on Biological Diversity. https://www.cbd.int/impact/whatis.shtml 

2. Draft articles on prevention of transboundary harm from hazardous activities, 2001. (2004). Documents in International Environmental Law, 24–30. https://doi.org/10.1017/cbo9781139171380.005  

3. Jain, T. (2008). Trans-boundary harm: An environmental principle in international context. The Icfai University Journal of Environmental Law, 7(4), 10-22. [Online]. Retrieved October 2008, from https://ssrn.com/abstract=1087596

4. Xue, H. (2003). Transboundary Damage in International Law. https://doi.org/10.1017/cbo9780511494642

5. Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010. Retrieved June 5, 2024, from
https://www.icj-cij.org/sites/default/files/case-related/135/135-20100420-JUD-01-00-EN.pdf.

6. Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Judgment, I.C.J. Reports 2015. 

7. Shaw, M. N. (2017). International Law (8th ed.). Cambridge University Press. 10.1017/9781316979815.  

8. Gillespie, A. (2008, August 11). Environmental Impact Assessments in International Law. RECIEL, 17(2), 221-223. Retrieved June 5, 2024, from 
https://doi.org/10.1111/j.1467-9388.2008.00601.x. 

9. NATIONAL ENVIRONMENTAL POLICY ACT OF 1969 [Public Law 91–190] [As Amended Through P.L. 118–5, Enacted June 3, 2023] Be it en. (2023, June 3). GovInfo. Retrieved June 5, 2024, from
https://www.energy.gov/sites/default/files/2023-08/NEPA%20reg%20amend%2006-2023.pdf 

10. UN Environment (2018). Assessing Environmental Impacts- A Global Review of Legislation, Nairobi, Kenya.

11. Convention on Biological Diversity, May 22, 1992. Retrieved June 5, 2024, from 
https://www.cbd.int/doc/legal/cbd-en.pdf. 

12. Convention on Environmental Impact Assessment in a Transboundary Context, February 25, 1991. Retrieved June 5, 2024, from
https://unece.org/sites/default/files/2021-03/Espoo%20Convention.pdf. 

13. United Nations Convention on the Law of the Sea, December 10, 1982. Retrieved June 5, 2024, from
https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf.  

14. Gabˇcíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997 (Feb. 5). Retrieved June 5, 2024, from
https://www.icj-cij.org/sites/default/files/case-related/92/092-19970925-JUD-01-00-EN.pdf 

15. Song, Y. The Obligation of EIA in the International Jurisprudence and Its Impact on the BBNJ Negotiations. Sustainability 2022, 15, 487. Retrieved June 5, 2024, from
https://doi.org/10.3390/su15010487.    

16. Land Reclamation in and around the Straits of Johor (Malaysia v. Singapore), Provisional Measures, Order of 8 October 2003, ITLOS Reports 2003. Retrieved June 5, 2024, from
https://www.itlos.org/fileadmin/itlos/documents/cases/case_no_12/12_order_081003_en.pdf 

17. Boyle, A. (n.d.). Espoo and EIA in Customary International Law. UNECE. Retrieved June 5, 2024, from
https://unece.org/fileadmin/DAM/env/eia/documents/mop5/Seminar_Boyle.pdf 

18. ILC (2001). Report of the International Law Commission on the work of its fifty-third session. GAOR A/56/10, commentary to Article 7. 

19. World Bank (2006). Environmental impact assessment regulations and strategic environmental assessment requirements: practices and lessons learned in East and Southeast Asia. Washington. DC: World Bank. 

20. Mahmud, A. R. (2022, September 1). Challenges in Implementation of Environmental Impact Assessment Among Islamic Countries. (01-08).

21. Barriers and Challenges for Environmental Assessment. (n.d.). Local Government Association. Retrieved June 6, 2024, from
https://www.local.gov.uk/pas/topics/environment/environmental-outcomes-reports/barriers-and-challenges-environmental 

22. Environmental Impact Assessment Advantages And Disadvantages. (2023, November 29). Cypress. Retrieved June 6, 2024, from
https://cypressei.com/engineering/environmental-impact-assessment-advantages-disadvantages/ 

23. Doberstein, B. (2003). Environmental capacity-building in a transitional economy: the emergence of EIA capacity in Viet Nam. Impact Assessment and Project Appraisal, 21(1), 25–42. Retrieved June 6, 2024, from https://doi.org/10.3152/1471546037817​