126. These measures include, above all, an obligation of each State to make a serious and
complete assessment of the repercussions on the environment before executing any project that
could harm the environment of third States.
127. In this regard, Principle 17 of the Rio Declaration on the Environment and Development
adopted by the 1992 United Nations Conference on the Environment and Development,
establishes that:
“Environmental impact assessment, as a national instrument, shall be undertaken for
proposed activities that are likely to have a significant adverse impact on the environment
and are subject to a decision of a competent national authority.” 74
128. This principle is now considered part of general international law, as recognized by the
International Court of Justice in the case of Pulp Mills on the River Uruguay:
“It may now be considered a requirement under general international law to undertake an
environmental impact assessment where there is a risk that the proposed industrial
activity may have a significant adverse impact in a transboundary context.” 75
129. The International Court of Justice defined and confirmed the existence and the content of
this obligation in its decision of December 16, 2015, in the joindered cases of Certain activities
carried out by Nicaragua in the border area (Costa Rica v. Nicaragua) and Construction of a
road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica). Citing an extract from
the case of Pulp Mills on the River Uruguay mentioned in the preceding paragraph, that Court
added:
“Although the Court's statement in the Pulp Mills case refers to industrial activities, the
underlying principle applies generally to proposed activities which may have a significant
adverse impact in a transboundary context. Thus, to fulfil its obligation to exercise due
diligence in preventing significant transboundary environmental harm, a State must,
before embarking on an activity having the potential adversely to affect the environment
of another State, ascertain if there is a risk of significant transboundary harm, which
would trigger the requirement to carry out an environmental impact assessment.” 76
The International Court of Justice also asserted that:
“A State's obligation to exercise due diligence in preventing significant transboundary
harm requires that State to ascertain whether there is a risk of significant transboundary
harm prior to undertaking an activity having the potential adversely to affect the
environment of another State. If that is the case, the State concerned must conduct an
environmental impact assessment. The obligation in question rests on the State pursuing
74
The Rio Declaration on the Environment and Development is available at:
http://www.unep.org/documents.multilingual/default.asp?documentid=78&articleid=1163.
75
I.C.J., Case concerning Pulp Mills on the River Uruguay (Argentina contra Uruguay), judgment of April 10,
2010, p. 73, para. 205
76
I.C.J., Cases concerning Certain activities carried out by Nicaragua in the border area (Costa Rica v.
Nicaragua) and Construction of a road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica),
judgment of December 16, 2015, p. 45, para. 104.
60
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents