2. Introduction
3.6 The principle of minimization of environmental harm
by a majority of UN members, the Convention would not be effective. However, the UN can take advantage of the UNECE Water Convention by adopting MOPs and creating a mutual understanding of transboundary water management principles, including equitable utilization.
growing environmental concerns impacted the development of this principle because there is a strong link between the principle and global environmental issues. The establishment of the ICJ contributed to the development of the principle internationally.
This was illustrated in one of the earliest cases of the Court. In the Corfu channel case between the UK and Albania, the ICJ confirmed that states could be responsible under international law for damage to other states even if it occurs inside their territory.390 Even though the case was not related to the transboundary river, it was significant to develop transboundary harm in international law.
The Lake Lanoux Arbitration is considered as another early case that mentioned the concept as a significant principle of international law. The award stated:391
Thus, if it is admitted that there is a principle which prohibits the upstream State from altering the waters of a river in such a fashion as seriously to prejudice the downstream State, such a principle would have no application to the present case, because it has been admitted by the Tribunal, in connection with the first question examined above, that the French scheme will not alter the waters of the Carol.
Even though, the Spanish claim was rejected by the court, but the Arbitration Award confirmed that there is a principle in international law for not causing environmental harm to other countries. As discussed in the previous sections, this confirmation has influenced most international conventions and rules related to environmental issues. For instance, article 7 of the UN Watercourses Convention obliges riparian states not to cause significant harm to other states. Article 7 (2) requires the state that caused the harm to consult with the affected state to remedy this harm.392 Thus, the principle is viewed as favouring downstream countries because it forces upstream countries to take the required measures to not cause damage to others.
In addition, the Berlin Rules concentrate on the minimization of environmental harm in both articles 8 and 16. Article 3(8) defined “environmental harm” in two main dimensions. These include first, the “injury to the environment and any other loss or damage caused by such harm”, and second “the costs of reasonable measures to restore
390 See Corfu Channel case (United Kingdom v. Albania) [1949] ICJ Reports.
391 Lake Lanoux Aribitration (France v. Spain), above n 157, para 129.
392 Convention on the Law of the Non-navigational Uses of International Watercourses art 7.2.
the environment actually undertaken or to be undertaken.”393 This method is the same as the one implemented by the UN Watercourses Convention to define the principle.
However, the most substantial and novel point that distinguishes the Berlin Rules from other legal rules and conventions emphasizes environmental impact assessment (EIA) and its relationship with the no-harm principle.
Chapter IV of the Berlin Rules motivates states to undertake EIA for any project or activity that may influence water resources and surrounding areas or the suitability of these resources. Nevertheless, states are not only responsible for their activities, but they are also responsible for the activities of non-state actors inside their sovereign borders.394 The EIA should be undertaken for any project that may influence the state's environment or other agencies inside the state. By virtue of article 29 on the EIA process, states should assess the “effects on human health and safety; the environment;
existing or prospective economic activity; cultural or socio-economic conditions; the sustainability of the use of waters.”395 This was a significant development for the minimization of harm principle because a precautionary procedure was added to it.
This development of the principle was also reflected in one of the ICJ cases. In the Pulp Mills on the River Uruguay case between Argentina and Uruguay, the court emphasized the importance of the EIA for issues related to transboundary rivers.396 The court stated that the parties:397
… must, for the purposes of protecting and preserving the aquatic environment with respect to activities which may be liable to cause transboundary harm, carry out an environmental impact assessment.
This paragraph of the judgment obliges countries to undertake the EIA as the first step before building a water project, particularly in transboundary river basins. This requirement provides for all riparian states in any basin to have a clear idea of a project undertaken by one of the parties. It is quite significant and closely related to the
393 Berlin Rules on water resources art 7.
394 Owen McIntyre “Responsibility and liability in international law for damage to transboundary fresh water resources” in Research Handbook on Freshwater Law and International Relations (Edward Elgar Publishing, 2018) at 350.
395 Berlin Rules on water resources art 29.
396 See Cymie R Payne “Pulp Mills on the River Uruguay (Argentina v. Uruguay)” (2011) 105(1) American Journal of International Law.
397 Pulp Mills on the River Uruguay (Argentina v. Uruguay) [2010].
principle of minimization of environmental harm because this element illustrates the impact of a project on the environment before implementation. Thus, it will be useful to explain this requirement in more detail.
3.6.1 Environmental Impact Assessment
EIA is a significant process that should be considered before operating a specific project or action. In this process, the impacts of the project will be evaluated on the environment and population. The EIA offers policymakers a clear idea about the project's effects on the environment and leads them to make an appropriate decision regarding it.398 This tool directly links with the minimization of environmental harm because the EIA should identify all environmental concerns that may happen before implementing any water project.
This tool does not have a long history, though the assessment of projects and their influence on the environment increased in the 1960s. The US was the leading country that put EIA in its jurisdiction. The National Policy Act 1969 obliged major projects and activities to undertake EIA as a requirement before starting them. This movement and the Act had a rapid influence on other developed nations. The US and Canada adopted EIA in 1973, Australia in 1974, the Netherlands in 1981, Japan in 1984, and the EU Commission in 1985.399 Meanwhile, New Zealand joined these countries by adapting the EIA into the RMA in 1991.400 Thus, the EIA now has a significant position among developed countries. New Zealand, for instance, has introduced the EIA as a major tool for the assessment of any project.401
EIA assists in guaranteeing that “the importance of the predicted effects, and the scope for reducing them, are properly understood by the public and the relevant competent body before it makes its decision.”402 Significantly, this process informs the public about the impacts of any project on the environment. In this way, the public and
398 See Christopher Wood Environmental impact assessment: a comparative review (Pearson Education, 2003).
399 Peter Wathern Environmental impact assessment: theory and practice (Routledge, 2013) at 1.
400 Jennifer Dixon and Burrell E Montz “From concept to practice: implementing cumulative impact assessment in New Zealand” (1995) 19(3) Environmental management at 445.
401 C Wood Environmental impact assessment: a comparative review (Second ed, Routledge, 2014) at 80.
402 Wathern, above n 399.
policymakers can decide on projects based on the assessment. The significance of EIA also encourages states to draft a convention for this tool - the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention).
This convention was signed in 1991 and entered into force in September 1997.403 The Espoo Convention defines EIA as a local assessment for any project that may have an impact on the environment.404 The Espoo Convention then motivates states to take EIA seriously because it has a crucial influence at both national and regional levels.
Domestically, it increases public participation and public awareness regarding future projects and activities.405 Regionally, it gives assurance to riparian states because the transboundary impact of the project will be evaluated in the EIA process. However, the scope of the Espoo Convention is still narrow because the majority of signatory members are from the EU. Forty-five states are members of the Espoo Convention, and most of them are from the developed world.406
The significance of EIA encouraged global leaders to emphasize this tool in two principles of the Espoo Convention. Principle 17 defines EIA, but principle 19 urges states to undertake EIA in good faith by providing adequate information regarding projects and EIA for riparian states.407 This means that EIA is not only necessary at the national level, but it is also significant for promoting cooperation on the transboundary issue at the regional and global levels. Nevertheless, the effectiveness of the Espoo Convention is still questionable in the developing world because none of the countries in Africa or Latin America are member parties of the Convention. Furthermore, less than five states outside Europe are a member of the Espoo Convention.
The UN Watercourses Convention also encourages riparian states to notify each other of any future projects on transboundary rivers, including providing EIA, if it was
403 Wiecher Schrage “. The Convention on Environmental Impact Assessment in a Transboundary Context” in Theory and Practice of Transboundary Environmental Impact Assessment (Brill Nijhoff, 2008) at 27-51.
404 See UNECE Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention).
405 At art 2 and 3.
406 United Nations “Treaty Collection: Convention on Environmental Impact Assessment in a Transboundary Context” (2020) <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII- 4&chapter=27&lang=en>.
407 Annex I Report of the United Nations conference on environment and development (26, 1992) principles 17-19.
available. According to article 12, “such notification shall be accompanied by available technical data and information, including the results of environmental impact assessment.”408 However, the language of the article is too soft and refers to EIA as an optional tool. The EIA has significantly influenced the minimization of environmental harm and has remarkably enhanced the principle, but this is not fully reflected in the current text of the Convention. The Berlin Rules is more comprehensive than the UN Watercourses Convention by emphasizing EIA and providing mechanisms for avoiding environmental harm in national and international watercourses.
3.6.2 Ramsar convention
Despite the above conventions, the Convention on Wetlands of International Importance, especially as Waterfowl Habitat known as the Ramsar Convention, is another convention related to transboundary water management. The role of the convention is quite significant because it was the first and earliest treaty for protecting water resources in the last century. This convention was adopted after several decades of discussion.409 Eighteen countries signed the Ramsar Convention in February 1971.410 The number of contracting parties increased to 170 members by September 2019.
Equitable water allocation and avoiding environmental damage in transboundary watercourses are crucial for protecting wetland sites recognized under the Ramsar Convention. There are 2,370 sites listed as important international wetlands that equal 252,562,111 hectares of wetland areas.411
Notably, there is a direct link between transboundary rivers and wetlands, especially if the wetlands are located in downstream countries. Dams and water projects in upstream states affect water flow in downstream states if they are not managed efficiently. Also, if transboundary impacts of projects or activities near wetlands are not evaluated, they may significantly impact the quality and quantity of water resources. As defined in the Ramsar Convention, wetlands cover a large area of land and water, as stated in article
408 Convention on the Law of the Non-navigational Uses of International Watercourses art 12.
409 CM Finlayson and others “Managing freshwater protected areas in the global landscape” in Freshwater Ecosystems in Protected Areas (Routledge, 2018) at 224.
410 Geoffrey Vernon Townsend Matthews The Ramsar Convention on Wetlands: its history and development at 4.
411 The Ramsar Convention “The list of wetlands of international importance (the Ramsar list)” (2019)
<https://www.ramsar.org/document/the-list-of-wetlands-of-international-importance-the-ramsar-list>.
1:412
Areas of marsh, fen, peatland or water, whether natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water the depth of which at low tide does not exceed six metres.
The definition explores the vital role of wetlands in any country because they have considerable environmental, cultural, and economic value for countries and the whole world. For instance, marshlands in Iraq are considered the largest wetland in the Middle East. Since the Sumerian period, these marshlands were home to many people in the Middle and South in Iraq. Over half a million people lived in these wetlands before they faced drought in the 1990s.413 These marshes covered large areas that accounted for between 10,500 km2 and 20,000 km2.414 Significant threatened species such as smooth- coated otter, grey wolf and Indian crested porcupine, along with the Iraq babbler and the Basra reed warbler, existed in this area.415 Despite the environmental and economic values, these wetlands have considerable cultural and historical values for Iraq and the whole world because they were home to the Sumerian civilization.416 The Ramsar Convention should therefore act as a constraint, like minimizing harm, on the use of transboundary rivers.