Guidance on the Practical Application of the Espoo Convention
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Dispute prevention and settlement (Art. 15)
The Convention includes a framework and procedure for dispute resolution. The first requirement is to have negotiations between the concerned Parties. This article refers to negotiations after the dispute has arisen. Information exchange and negotiations before the application of the Convention reduce the likelihood of a dispute in a first place and are thus worth carrying out. Dispute resolution mechanisms can also be included in agreements based on the Convention.
Long range impacts (Art. 1.8)
The activities and the impacts
Identifying types of activities that may have long range impacts is the first step. The main difficulty lies in deciding when a specific activity contributes significantly to a long range impact. For example, industrial pollutants travelling long distances may cause long range impacts, but the contribution of a single activity is often very small. On the other hand, an activity that causes impacts on migrating animals, have transboundary long range implications. Agreements may list specific activities to be screened for long range impacts.
When the activities have been identified, the possible affected Parties for the impacts of these activities should be found. The difficulties relate to deciding on “realistic” areas of impact in order to determine which Parties of the Convention may be affected and thus informed of the activity. Thinking of areas or regions as geographical entities such as river basins, watershed, mountain regions and waterways and identifying the mechanisms through which impacts may occur help in dealing with the scale of impacts. A crucial issue will be the magnitude of the impact due to the activity relative to other “background” effects caused by other activities.
Dealing with the complexity
When long range impacts are in question, the setting is far more complicated than in a two-Party transboundary assessment. For example, there may be several affected Parties with different languages. To keep translations at a realistic level it is advisable to use, as appropriate, one or several of the three official UN languages in the notification (see also sub-section on Translation of documents). Problems may also arise when legislative requirements of various Parties have to be considered. The Database on EIA in a transboundary context, including information from legislation in different nations, would support the practical application. Each Party could contribute to this data source by providing regularly updated information on their legislation into the web, in one or several of the official UN languages.
A joint EIA is a special case in applying the Convention. In practice two situations may occur:
- joint projects with impacts on one or both of the two Parties of origin (e.g. boundary-crossing motorway), and
- joint projects with impacts not only on the two Parties of origin but also on other Parties (e.g. pipelines in a water basin)
In the first case the Parties should agree when starting the projects, whether they are going to carry out two separate EIA´s, (i.e. two different procedures including the elaboration of two different EIA documentations and notify each other), or whether some or most of the steps will be carried out jointly. The ways in which the steps of the EIA procedure may be joined and the distribution of tasks among the two Parties are manifold. In the second case Parties will also have to cope with the problem of how the participation of these other affected Parties may be carried out. From the practical point of view, it may be helpful to share the responsibilities among the Parties, but the obligation to carry out the process rests separately on those Parties that count themselves as Party of origin. To make the joint EIA smooth, the roles of the two Parties should be specified from the beginning for each stage of the assessment. Parties which are expected to have joint transboundary assessments on a regular basis, for example because they are geographically located in such a way that resources or pathways overlap borders, can resolve many issues by developing bilateral agreements on transboundary EIA.
A joint EIA can be initiated by holding a preparatory meeting between the two (or several) joint Parties of origin to prepare the notification and the procedure. At this meeting the practical issues such as time schedules, level of participation and steps to be taken should be decided upon. It is worth specifying separate time schedules for each Party to respect the national legislation. However, informing the other Parties help to build a flexible time schedule that suits all the Parties and is known by all of them. One way to solve the practical issues is to form a joint body. The body could meet regularly throughout the process and have a general coordination role with respect to the schedules and other practical matters related to the process management. Meetings may be held face to face or by using electronic devices such as email and AV-equipment.
Notification should be sent to all the affected Parties. At this stage, the notification may be exchanged because of the dual roles: Party of origin and affected Party. In addition there may be third Parties involved, which are only affected by the activity. The reason for cross-notification are 1) to fulfil the requirements of the Convention, 2) to keep the process well defined and 3) to keep it connected to the national EIA process. The documents may be partly the same and they should include cross-references so that the receiver knows that the different notifications deal with the same case.
When the Parties interested in participating in the joint EIA have been identified it is rational to carry out screening, scoping, the documentation and possibly other steps jointly, although there may be special features of the impacts on one side of the border that warrant partly separate analyses. Joint bodies are likely to be useful in ensuring e.g. coherent documentation. If the Parties give very different weighs to the impacts, a joint assessment is more difficult to carry out and is likely to require extensive negotiations throughout the assessment. In these cases a joint body consisting of EIA authorities with general supervisory function is highly recommendable.
After the assessment
The decisions on the activities will be made separately by all the Parties of origin. This is due to the national legislation and it is also supported by the requirements of the Convention. On the other hand, monitoring that extends over more than one Party´s territory is useful to carry out jointly, for example by forming a joint task force or by using some bi- or multilateral body for dealing with the case specific monitoring
Policies, plans and programmes (Art. 2.7)
The Convention requires that the Parties endeavour to apply the Convention to level of policies, plans and programmes. Thus, it is not mandatory as such. There is still a lack of tradition and experience. However, the recent EC Directive on SEA 2001 Directive 2001/42/EC of the European parliament and of the Council on the assessment of the effects of certain plans and programmes on the environment) sets requirements for Member States of the European Union to carry out transboundary assessments also for plans and programmes. This requirement will cover also UNECE countries in the future because a Protocol on Strategic Environmental Assessment under Espoo Convention was finalized in January 2003. The level of policies, plans and programmes has been considered important in the context of the Convention and thus an ad hoc working group has been set up to develop a protocol on strategic environmental assessment under the auspices of the Convention.
If the assessment of PPPs is included in a bi- or multilateral agreement it is essential to agree on the type of PPPs that are made subject to transboundary assessements on a reciprocal basis. For example transport is one sector that is advisable to be included in the list.
Post-project analysis (Art. 7)
Post-project analysis is not a mandatory activity that would be included in all transboundary EIAs. Still, the Convention provides that the Parties shall determine at the request of one of the Parties whether a post-project analysis shall be carried out. In practice both concerned Parties may have different views whether such an analysis is necessary. As a result of consultations on such an issue a post-project analysis may or may not be carried out.
If a post-project analysis is carried out as an application of the Convention, it has to analyse, as a minimum, both the activity as well as its potential adverse transboundary impacts. If the post-project analysis provides unexpected results, the Party of origin has to inform the affected Party and carry out consultations concerning necessary measures.
A post-project analysis can be included in the final decision as a requirement related to the monitoring of the activity. Alternatively, it could be made part of the overall plan for the transboundary assessments from the start of the procedure. A post-project analysis is typically based on the monitoring of the activity and its impacts. Monitoring can also be carried out jointly by the Parties and within the territory of all Parties concerned. The Parties should exchange any results gained of the monitoring. Requirements concerning post-project analysis can be included in agreements on transboundary EIA.