144
10 The Resilience of Transboundary Water Governance …
EIAs relating to highly contentious water projects. It also provides a shortcut from
the cumbersome inquiry procedure foreseen by the Espoo Convention for cases of
complacency or non-cooperation by the riparian of origin.
10.3.3.2 UNECE Law
At first sight, the UNECE Water Convention seems to address the issue of prior notification of planned measures relatively lightly. The Convention calls upon riparian
states to “provide for the widest exchange of information, as early as possible, on
issues covered by the provision of [the] Convention” (Art. 6.). This obligation is
specifically extended to “measures taken and planned to be taken to prevent, control and reduce transboundary impact” (Art. 13.1.d)). The Convention also foresees
parties to undertake environmental impact assessment in their national authorisation
schemes for water projects (Art. 3.1.h)). Moreover, it encourages them to set up bilateral or multilateral regimes and joint bodies so as to “serve as a forum for the exchange
of information on existing and planned uses of water and related installations that are
likely to cause transboundary impact” and “to participate in the implementation of
environmental impact assessments relating to transboundary waters, in accordance
with appropriate international regulations.” (Art. 9.2.h),j)). Consequently, the Convention basically refers the question of prior notification and consultation into the
realm of international environmental impact assessment procedure.
This partial approach was no doubt justifiable at the time of drafting the Convention by the fact that UNECE already had a specific horizontal instrument on
transboundary EIAs in place. The so-called Espoo Convention, adopted in 1991, sets
out precisely the procedure parties are required to follow in cases where planned
interventions are likely to trigger transboundary environmental consequences. The
procedure comprises the preparation of an environmental impact study (“assessment
documentation”), the notification of the results of the environmental assessment to
the affected riparian states and consultations-upon-request by the recipient state (Art.
2–5.).The state of origin must afford due consideration to the comments made by the
recipient state and notify its final decision (Art. 6.). When there is a difference among
the parties as to the likelihood of environmental impact—i.e. the party of origin fails
to notify a project and denies the risk of transboundary impact—the affected party
may trigger a mandatory fact finding mechanism through an inquiry commission
(Annex IV).
Given the complementarity of the two regimes, the Espoo Convention provides
a sufficiently robust framework for prior notification and consultation with regards
to water-related projects with a transboundary impact between UNECE countries
(UNECE 2013a). Nevertheless, some authors have criticised the lack of an appropriate regime of prior notification within the UNECE Water Convention text as imprudent draftsmanship (McCaffrey 2016). This shortcoming may indeed turn out to be
a critical lacuna if the Convention is ratified by countries outside the UNECE region
that are not bound by the Espoo regime at the same time.
10 The Resilience of Transboundary Water Governance …
EIAs relating to highly contentious water projects. It also provides a shortcut from
the cumbersome inquiry procedure foreseen by the Espoo Convention for cases of
complacency or non-cooperation by the riparian of origin.
10.3.3.2 UNECE Law
At first sight, the UNECE Water Convention seems to address the issue of prior notification of planned measures relatively lightly. The Convention calls upon riparian
states to “provide for the widest exchange of information, as early as possible, on
issues covered by the provision of [the] Convention” (Art. 6.). This obligation is
specifically extended to “measures taken and planned to be taken to prevent, control and reduce transboundary impact” (Art. 13.1.d)). The Convention also foresees
parties to undertake environmental impact assessment in their national authorisation
schemes for water projects (Art. 3.1.h)). Moreover, it encourages them to set up bilateral or multilateral regimes and joint bodies so as to “serve as a forum for the exchange
of information on existing and planned uses of water and related installations that are
likely to cause transboundary impact” and “to participate in the implementation of
environmental impact assessments relating to transboundary waters, in accordance
with appropriate international regulations.” (Art. 9.2.h),j)). Consequently, the Convention basically refers the question of prior notification and consultation into the
realm of international environmental impact assessment procedure.
This partial approach was no doubt justifiable at the time of drafting the Convention by the fact that UNECE already had a specific horizontal instrument on
transboundary EIAs in place. The so-called Espoo Convention, adopted in 1991, sets
out precisely the procedure parties are required to follow in cases where planned
interventions are likely to trigger transboundary environmental consequences. The
procedure comprises the preparation of an environmental impact study (“assessment
documentation”), the notification of the results of the environmental assessment to
the affected riparian states and consultations-upon-request by the recipient state (Art.
2–5.).The state of origin must afford due consideration to the comments made by the
recipient state and notify its final decision (Art. 6.). When there is a difference among
the parties as to the likelihood of environmental impact—i.e. the party of origin fails
to notify a project and denies the risk of transboundary impact—the affected party
may trigger a mandatory fact finding mechanism through an inquiry commission
(Annex IV).
Given the complementarity of the two regimes, the Espoo Convention provides
a sufficiently robust framework for prior notification and consultation with regards
to water-related projects with a transboundary impact between UNECE countries
(UNECE 2013a). Nevertheless, some authors have criticised the lack of an appropriate regime of prior notification within the UNECE Water Convention text as imprudent draftsmanship (McCaffrey 2016). This shortcoming may indeed turn out to be
a critical lacuna if the Convention is ratified by countries outside the UNECE region
that are not bound by the Espoo regime at the same time.