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the United Nations Economic Commission for Europe

To understand the scope of the obligation to conduct an EIA, three issues must be addressed, namely (i) the formal source from which the obligation derives (treaty, custom, general principles of law), (ii) the spatial scope of the requirement (national, transboundary, global) and (iii) the specific content of the obligation. Regarding the first point, some treaties provide for an obligation to conduct an EIA. One major example is the Convention on Environmental Impact Assessment in a Transboundary Context (‘Espoo Convention’) adopted in 1991 as part of the United Nations Economic Commission for Europe (‘UNECE’).111 Under this Convention, States parties must introduce into their domestic law the obligation to conduct an EIA before authorising certain activities (listed in Appendix I) that may have a ‘significant adverse transboundary impact’. 112 Beyond treaty law, the ICJ has recently recognised, in the Pulp Mills case, that the obligation to conduct an EIA has a customary grounding. According to the Court, a practice has developed: 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.113 The statement of the Court takes us directly to the second point identified above, namely the spatial scope of the requirement. Both the Espoo Convention (as well as other conventions) and general international law seem to confine the obligation to conduct an EIA to the transboundary context. This leaves open the question of whether the customary obligation also covers situations where the proposed activity takes place in a purely domestic context or where it concerns areas beyond national jurisdiction.