MULTILATERAL ENVIRONMENTAL AGREEMENTS

The LISA project reviewed the application of MEAs relevant to environmental conservation in Asia. Together with the United Nations Framework Convention on Climate Change (UNFCCC), the seven key MEAs—the Convention on Biological Diversity (CBD), Convention on International Trade in Endangered Species (CITES), Convention on Migratory Species (CMS), World Heritage Convention (WHC), International Plant Protection Convention (IPPC), the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), and the Ramsar Convention on Wetlands of International Importance—have widespread application in ASEAN (see Table 3).

The near universal application of these key MEAs in ASEAN countries demonstrates the region’s commitment to international environmental standards. It also establishes legal commitments to apply these MEAs when planning major economic development activities, including linear infrastructure.

Transboundary Impact Assessment

Relevant to largescale linear infrastructure development, international environmental law requires that an EIA must be conducted for a project that is likely to have a significant transboundary environmental or social impact. This was codified in Principle 17 of the Rio Declaration 1992.64 The judgements of the International Court of Justice have reaffirmed this position. Assessment through EIA is a norm of international environmental law.65

ASEAN, unlike Europe, does not have a codified system for transboundary EIAs. However, the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention),66 adopted in 1991, applies to activities likely to significantly affect the

63  Adapted from USAID (2021) “Annex 3: Existing Capacity and Constraints to Undertake Wildlife-Friendly Linear Infrastructure in Asia”, Building a Foundation for Linear Infrastructure Safeguards in Asia, p. 17-18.

64  Baird, M. (2020) (last accessed 1 July 2022)

65  Yang, T. (2019), p. 527 environment in other countries. The obligations under the Espoo Convention require the parties to take “all appropriate and effective measures to prevent, reduce, and control significant adverse transboundary environmental impact from proposed activities.”67

66  UNECE (n.d.) Environmental Assessment, https://unece.org/environment-policy/environmental-assessment (last accessed 19 September 2022).

These obligations include requiring project level EIAs, notifying potentially affected countries, providing access to information to potentially affected parties, and allowing parties to comment and be informed on final decisions on projects. The Espoo Convention lists covered activities and provides a list of information that, at a minimum, should be included in an EIA. The Espoo Convention is important as it is based on international environmental law and provides access to information and the right to participate and be informed of potential adverse impacts from activities that may have a transboundary impact.68 The transboundary EIA procedures under the Espoo convention are depicted in Figure 7.

Confirmation of participation in application of convention

Transmittal of information

Preparation of EIA documentation

Distribution of EIA documentation for participation of authorities and public of affected Party

Consultation between parties

Final decision

Transmittal of final decision documentation

Post-project analysis

Public participation (may include one or more rounds)

The 1995 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (the Mekong River Agreement) is focused on sustainable development, use, conservation, and management of the water resources in the Mekong basin.70 It does not specifically refer to linear infrastructure projects and is concerned with water projects and water resources, but it does provide a framework for the transboundary impacts of development projects in the region. The key articles linking sustainability, development, and international cooperation in the Mekong River Agreement are reproduced in Box 4.

67 Espoo Convention, Article 2.

68 UNESCAP (2021), p. 13.

69 Ruza, S. (2010) “Presentation on Convention on Environmental Impact Assessment in a Transboundary Context (Espoo, 1991)”, Workshop on Multilateral Environmental Agreements Tirana, Albania, 22-24 June 2010

70 Preamble, Mekong Agreement. https://www.mrcmekong.org/publications/agreements/

Box 4: Mekong River Agreement provisions

ARTICLE 3. PROTECTION OF THE ENVIRONMENT AND ECOLOGICAL BALANCE

To protect the environment, natural resources, aquatic life and conditions, and ecological balance of the Mekong River Basin from pollution or other harmful effects resulting from any development plans and uses of water and related resources in the basin.

ARTICLE 4. SOVEREIGN EQUALITY AND TERRITORIAL INTEGRITY

To cooperate on the basis of sovereign equality and territorial integrity in the utilization and protection of the water resources of the Mekong river basin.

The Mekong River Agreement requires member countries to provide notification and have consultations with neighboring countries prior to making any commitments when projects may have transboundary impacts.71 The Procedures for Notification, Prior Consultation and Agreement (PNPCA) adopted in 2003 further enhanced the requirements for prior consultations.

The PNPCA promotes better understanding and cooperation among the Mekong River Commission (MRC) member countries. The guiding principles of the PNPCA are:72

• sovereign equality and territorial integrity

• equitable and reasonable utilization

• respect for rights and legitimate interests

• good faith

• transparency

The PNPCA outlines the process for notification for any proposed use and requires it to be submitted to the MRC in a timely fashion. The notification should include any feasibility study report, implementation plan, and all available data. This notification and accompanying supporting documentation is then transmitted via the MRC Joint Committee to the National Mekong Committees (NMCs). For certain specific uses, prior consultation is required. The PNPCA provides for a transmission and consultation mechanism that includes both NMCs and relevant line ministries. Any member state may make a submission on the proposed use. These are then considered and reviewed by the MRC Joint Committee. The time frame for consideration of prior consultation is six months.

The MRC has conducted transboundary EIAs for some projects using a similar process for submission, consultation with affected stakeholders, and review and consideration.73 The MRC has also developed guidelines on transboundary EIA processes in line with the requirements of the PNPCA.74

71 Mekong River Commision, Frequently Asked Questions about MRC Procedures for Notification, Prior Consultation and Agreement process, https://www. mrcmekong.org/news-and-events/consultations/pnpca-prior-consultations/faqs-to-the-mrc-procedures-for-notification-prior-consultation-and-agreementprocess/

72 Mekong River Commission (2018) Guidelines for Transboundary Environmental Impact Assessment (TbEIA) in the Lower Mekong River Basin: A Working Document, https://www.mrcmekong.org/resource/ajg6hp

73 https://www.mrcmekong.org/news-and-events/consultations/pnpca-prior-consultations/

74 Mekong River Commission (2018) Guidelines for Transboundary Environmental Impact Assessment (TbEIA) in the Lower Mekong River Basin: A Working Document, https://www.mrcmekong.org/resource/ajg6hp