Customary EIA-Obligations and International Case Law

Over the past decades, the ICJ has further refined the non-discrimination and no-harm princi-ples, and – step by step - recognized an obligation to conduct transboundary EIAs under general international law.⁵³⁹ Similarly, it can be argued that an obligation to assess human rights impacts – and ultimately to conduct HRIAs – can be based on the substantive obligation to respect, pro-tect and fulfill human rights.⁵⁴⁰ Therefore, the path towards the recognition of customary law EIA obligation shall briefly be illustrated, also in order to better understand whether similar developments exist in the context of HRIAs.

The issue arose most prominently in the Gabcikovo-Nagymaros Case,⁵⁴¹ a dispute between Hun-gary and Slovakia concerning the implementation and termination of the Budapest Treaty (1977), in which the states agreed to construct a dam and power generation project on the Dan-ube River. Hungary terminated the contract, claiming that the project imposed huge risks to the Hungarian environment, but Slovakia denied these allegations and unilaterally installed a com-parable project on Slovakian soil. Hungary claimed that the revised projects had negative im-pacts on Hungary’s access to the water of the Danube.

The Treaty of 1977 does not explicitly require an EIA. However, in the Court’s reading of the Treaty, the project’s impact on the environment are found to be a key issue that needs to be tak-en into account, givtak-en that the number of scitak-entific reports shows that tak-environmtak-ental risks are

“considerable”.⁵⁴² In order to evaluate these environmental risks, the Court continues, “[c]urrent standards must be taken into consideration”; unfortunately, the Court does not specify what these standards are. Instead, the state parties “should look afresh at the effects on the environ-ment of the operation of the Gabcikovo power plant”.⁵⁴³ It is made clear that it is not the Court’s task to determine the final results. Rather, it obliges the state parties to conduct “meaningful”

negotiations in order to “find an agreed solution that takes account of the objectives of the Trea-ty, which must be pursued in a joint and integrated way, as well as the norms of international environmental law and the principles of the law of international watercourses.”⁵⁴⁴ This defer-ence to state party negotiations probably reflects the tension between the no-harm principle and the principle of sovereignty concerning the use of natural resources, a tension which the ICJ was

538 See also: Craik, The International Law of Environmental Impact Assessment (above, n. 59), p. 67.

539 ICJ, Costa Rica v. Nicaragua, Certain Activities carried out by Nicaragua in the Border Area (above, n.

115), 101 and 104: “The Parties broadly agree on the existence in general international law of an obliga-tion to conduct an environmental impact assessment concerning activities carried out within a State’s jurisdiction that risk causing significant harm to other States, particularly in areas or regions of shared environmental conditions.”

540 See section 4.7 for a closer doctrinal human rights law analysis.

541 ICJ, Case concerning the Gabcikovo-Nagymaros Project (above, n. 115).

542 Ibid. at para 140. This legal interpretation emphasizes the role of the scientific community and civil society: Scientists and experts can, if they produce sufficient evidence of the harm, help to trigger the need to conduct an impact assessment.

543 Ibid., para 140.

544 Ibid., para 141.

unwilling to approach on more substantive terms. The Court requires that all relevant rules, principles and interests are taken “into account”, but does not state that EIAs are the only way to do so. ⁵⁴⁵ One might say that the ICJ grants a rather broad “margin of appreciation” on how exact-ly to implement this obligation.

In his separate opinion, Judge Weeramantry goes a step further. He believes there is, under current environmental law, a duty for ex-ante and ex-post environmental impact assessments that should be read into the treaty:

“Environmental law in its current state of development would read into treaties which may reasonably be considered to have a significant impact upon the environment, a duty of envi-ronmental impact assessment and this means also, whether the treaty expressly so provides or not, a duty of monitoring the environmental impacts of any substantial project during the operation of the scheme.”⁵⁴⁶

Environmental impact assessments are, in Weeramantry’s opinion, a “specific application of the larger general principle of caution”⁵⁴⁷ and recognized in a variety of international documents.

However, even he stops short of claiming a customary duty to conduct EIAs; instead the formula-tion that the “environmental impact principle” has “reached the level of general recogniformula-tion”⁵⁴⁸ leaves the normative status of such a principle slightly vague.

In the Nuclear Test Cases, New Zealand and Australia tried to prevent France from conducting nuclear tests due to the radioactive risks. New Zealand complained in 1995, when France an-nounced another series of nuclear tests in the Pacific area, that France had not conducted a prior and adequate environmental impact assessment; New Zealand argued that such an obligation existed both under international treaty law⁵⁴⁹ and as a general duty under international environmental law:

“[O]nce a duty to protect the environment exists, and once the interests of other States are recognized, any activity posing a risk to the environment must logically be subject to a prior requirement of risk assessment.”⁵⁵⁰

The argument is that a substantive duty to protect the environment – in this case mainly the marine environment in the South Pacific - logically requires states to make sure that no such risks to the environment exist. One could object that a general substantive duty to protect the environment does not contain a specific duty to engage in a specific and normally legally regu-lated IA-procedure. However, this concern is rebutted by New Zealand with the remark that the use of the term EIA is “simply a convenient term to describe a process whereby a party carries out a clear, legal duty”.⁵⁵¹ France does not object that there is such a duty to prevent harm and that states must assess risks before taking action, and that EIAs are one of the existing

545 Craik, The International Law of Environmental Impact Assessment (above, n. 59), p. 114.

546 ICJ, Case concerning the Gabcikovo-Nagymaros Project, (above, n. 515), p. 112.

547 Ibid., p. 113.

548 Ibid., p. 111.

549 ICJ, Nuclear Test Cases - Oral Pleadings (above, n. 88), p. 22.

550 Ibid., p. 25. Reference is also made to the Draft Articles on Liability for Injurious Consequences arising out of Acts not Prohibited by International Law.

551 Ibid., p. 22.

ments to discharge such an obligation⁵⁵². Rather, the French position was that risks and impacts had been adequately assessed. Therefore, both parties agreed that there generally exists a duty to conduct, in a broad sense, environmental impact assessments; disagreement persisted regard-ing the adequacy of the procedures applied in the concrete case. The French representative ar-gues in favor of a “considerable margin of appreciation” for states on how to make sure, in ad-vance, that their potentially dangerous activities do not cause environmental harm.⁵⁵³

This supports the view that states recognize, as customary international law, the obligation to conduct transboundary environmental impact assessments and to cooperate in the context of initiatives that can have an impact on other states’ legitimate interests.⁵⁵⁴ As the ICJ refused to hear the case due to a lack of jurisdiction, it did not speak out on New Zealand’s arguments. The judges of the minority however “cautiously embraced”⁵⁵⁵ this approach, and Judge Weeramantry finds that the principle of environmental assessment has “reached the level of general recogni-tion at which this court should take notice of it”.⁵⁵⁶

The ICJ later used the chance to further clarify this still foggy description and confirmed in its Pulp Mill decision 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 trans-boundary context, in particular, on a shared resource.”⁵⁵⁷

Still cautious (“may”), the Court most recently turned the “may” into a “must” in a case concern-ing Costa Rica v. Nicaragua:

“Although the Court’s statement in the Pulp Mills case refers to industrial ac-tivities, the underlying principle applies generally to proposed activities which may have a significant adverse impact in a transboundary context.

Thus, to fulfil its obligation to exercise due diligence in preventing significant transboundary environmental harm, a State must, before embarking on an ac-tivity having the potential adversely to affect the environment of another State, ascertain if there is a risk of significant transboundary harm, which would trigger the requirement to carry out an environmental impact assess-ment.”⁵⁵⁸

It has been a long path until the obligation to conduct EIAs was clearly recognized as a principle under international law. A similar development can be observed in the context of human rights.

552 Ibid., p. 57.

553 Ibid.: “[…] une marge considérable d'appréciation à chaque Etat concerné quant à la façon de s'assurer préalablement à l'entreprise d'activités qui seraient potentiellement dangereuses, que leur incidence sur l'environnement ne serait pas dommageable.”

554 Markus W. Gehring, ‘Tools for More Sustainable Trade Treaties with Developing Countries’ (above, n.

62).

555 Craik, The International Law of Environmental Impact Assessment (above, n. 59), p. 113.

556 ICJ, Case concerning the Gabcikovo-Nagymaros Project, (above, n. 515), p. 111.

557 ICJ, I.C.J. Reports 2010, p. 14, Pulp Mills on the River Uruguay (Argentina v. Uruguay) (2010), para 204.

558 ICJ, Costa Rica v. Nicaragua, Certain Activities carried out by Nicaragua in the Border Area (above, n.

115), para 111.

The substantive scope of extraterritorial human rights obligations is controversial. It is in par-ticular unclear to what extent a state (or supra- and international organizations) must refrain from activities that may infringe human rights outside its territory (duty to respect), or whether there is even an obligation to protect human rights abroad (duty to protect). Nevertheless, there is a commitment (at least among Western states) that human rights are important objectives, and that the realization of human rights abroad must, where possible, at least not be obstructed.

There is not yet an obligation under customary law to conduct an HRIA similar to the obligation to conduct transboundary EIAs as the ICJ found in Costa Rica v. Nicaragua. Rather, we are proba-bly now more in the era of the Nuclear Test decisions where an obligation to assess human rights impacts is “cautiously embraced”. A positive exception is EU law which clearly establishes an obligation to take human rights impacts into account, regardless where they occur (see section 4.7.4).