Introduction

One tentative conclusion that can be drawn from the previous chapter is that the extension of domestic EIA obligations to include impacts beyond the state without further international cooperation will not be adequate on its own to address the challenges posed by extraterritorial environmental impacts. The form that this international cooperation takes will be affected by the presence of environmental norms shared between states – which is to say that the development of international EIA commitments will not occur in a vacuum, but will reflect general principles of international environmental law. In this regard, this chapter outlines the relationship between international EIA processes and three sets of background norms: nondiscrimination, the harm principle and sustainable development.

The relationship between the harm principle and international obligations to perform EIAs has long been acknowledged. As early as 1980, Günther Handl argued that a state’s obligation to prevent environmental harm to areas beyond its own territory requires it to investigate the potential impacts of its activities, while the duty to cooperate requires a source state to give notice of any impacts to an affected state. In short, Handl suggested that a generalized duty to undertake EIAs arose by necessary implication from the existence of the harm principle and the duty to cooperate. This view is not, however, without controversy. For example, John Knox has argued that the procedural structure of EIA commitments in international law is at odds with the substantive orientation of the harm principle.