Post‐environmental Impact Assessment Monitoring of Measures or Activities with Significant Transboundary Impact: An Assessment of Customary International Law

• Author: Nicolas Bremer
• Published date: 01 April 2017
• DOI: http://doi.org/10.1111/reel.12194
• Date: 01 April 2017

Post-environmental Impact Assessment Monitoring

of Measures or Activities with Significant

Transboundary Impact: An Assessment of

Customary International Law

Nicolas Bremer*

Transboundary environmental impact assessment

(EIA) is a rather new regulatory tool under inter-

national law. While there is consensus that custom-

ary international law obliges States to require

transboundary EIA to be conducted for particularly

invasive measures, the specific procedure and con-

tent of these assessment procedures is not stipulated

by customary international law. It rather provides

general principles that leave considerable room for

interpretation by States when implementing trans-

boundary EIA requirements and procedures. A pro-

cedural measure so far little discussed is post-EIA

monitoring of particularly invasive measures. Post-

assessment monitoring is, however, considered to be

a necessary tool to enable stakeholders to manage

environmental impacts effectively. Still, due to a

lack of specific State practice and opinio iuris,an

obligation to conduct or require post-EIA monitor-

ing does not exist as a separate provision of cus-

tomary international law. Nonetheless, it may

follow indirectly from the obligation to exchange

information and the no-harm rule.

INTRODUCTION

Environmental impact assessment (EIA) first developed

as a regulatory tool under domestic law. One of the first

jurisdictions to introduce EIA requirementsand proced-

ures was the United States (US), which in 1969 enacted

the National Environmental Policy Act that comprised

some EIA.

1

Ever since, EIA legislation has been passed

in various other jurisdictions.

2

While domestic EIA pro-

cedures differ somewhat in frequency and sophistica-

tion, commentators have found that basic principles and

EIA methodology are very similar worldwide.

3

Under

international law EIA is still a rather new concept. How-

ever, it has significantly gained in relevance as a regula-

tory tool under international law over the last decade.

4

Still, international law governing transboundary EIA

remains rather vague. While international law does

require (transboundary) EIA for specifically invasive

measures, it does not comprise a comprehensive EIA

regime prescribing specific content to be covered in an

EIA or a detailed EIA procedure. However, some gen-

eral principles appear to have evolved as universally

binding customary international law.

5

One such procedural EIA principle is the obligation to con-

tinuously monitor measures or activities that require EIA

in their operational phase (post-EIA monitoring). The pri-

mary purpose of post-EIA monitoring is to collect informa-

tion on such measures and activities to ensure their

compliance with conditions and standards as well as aid

impact management and mitigation. Both the immediate

and long-term benefits of undertaking monitoring as part

of EIA are widely recognized –although not always

*Corresponding author.

Email: nb@alexander-partner.com

1

Pursuant to US National Environmental Policy Act of 1969, 42 USC

4321–4347, Section 102(2)(c), ‘all agencies of the Federal Govern-

ment shall ...include in every recommendation or report on proposals

for legislation and other major Federal actions significantly affecting

the quality of the human environment, a detailed statement by the

responsible official on (i) the environmental impact of the proposed

action’.

2

International Law Commission, Report of the International Law Com-

mission on the Work of its Fifty-Third Session (23 April–1 June and 2

July–10 August 2001) (UN Doc. A/56/10, 2001), in: II/2 Yearbook of

the International Law Commission (2001), at 158; N.A. Robinson,

‘International Trends in Environmental Impact Assessment’, 19:3 Bos-

ton College Environmental Affairs Law Review (1992), at 593ff.

3

See N.A. Robinson, n. 2 above, at 594; P.W. Birnie, A.E. Boyle and

C. Redgwell, International Law and the Environment, 3rd edn (Oxford

University Press, 2009), at 166; C. Wood, Environmental Impact

Assessment: A Comparative Review, 2nd edn (Routledge, 2003), at

6ff. and 301ff.

4

For an overview of the evolution of the transboundary EIA regime,

see, e.g., K. Bastmeijer and T. Koivurova, ‘Transboundary Environ-

mental Impact Assessment: An Introduction’, in: K. Bastmeijer and T.

Koivurova (eds.), Theory and Practice of Transboundary Environmen-

tal Impact Assessment (Brill, 2008), 1, at 8ff.

5

For an overview of EIA under public international law, see N. Bre-

mer, ‘Transboundary Environmental Impact Assessment of Large

Dams in the Euphrates–Tigris Region: An Analysis of International

Law Binding Iran, Iraq, Syria and Turkey’, 25:1 Review of European,

Comparative and International Environmental Law (2016), 92.

ª2017 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

80

RECIEL 26 (1) 2017. ISSN 2050-0386 DOI: 10.1111/reel.12194

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Review of European Community & International Environmental Law