Almost all UN member states now have some type of Environmental Impact Assessment (eia) requirements, often combined with international, regional or bilateral agreements. eia provisions have been highly praised as being at the core of the international legal response to ensure environmental protection. Their salient features characterize the evolution of public international law; they are soft law provisions of a preventive and procedural nature, involving public participation, aimed at achieving a common interest. eia is an information tool for better public decision-making, which can contribute to empowering individuals and civic groups. In addition to the 1991 Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention), the 1998 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) formally expressed the possibility for all potential users of international law to become participants in the international legal system.
Within the framework of the New Haven School, this book is based on Henry Sumner Maine’s apothegm, “substantive law has at first the look of being gradually secreted in the interstices of procedure”.1 It has two related objectives: to study whether the role of procedure in secreting substantive law may be fulfilled in the idiosyncratic legal system of public international law, while appraising how eia requirements have been conceived and have been implemented as regards encouraging all international actors to behave in an environmentally conscious way, in a world of heterogeneous political regimes.
The New Haven School emphasizes that law is not a fixed set of traditional rules, but a continuous and dynamic process of authoritative decisions, in which a wide array of actors participate. eias have facilitated the empowerment of individuals and the creation of transnational environmental networks. As it appears in the case studies, and despite their critics, eias have chalked up substantial successes and achievements. In the search of symbols expressive of common aspirations around the world, and of sentiments for crystallizing the public order of the world community, eias appear to play such a role. It has been a common cultural experience from which have emerged common symbols and practices, essential for world unity. As Mahnoush Arsanjani
As procedural rules, eia requirements have equipped individuals with tools to express their preferred social choices, and have tended to fight off arbitrariness, in order for the confrontation of competing interests to unfold within expectations of effective norms of environmental protection, in view of sustainable development worldwide. In the words of Michael Reisman, “civic enforcement will have achieved a significant victory if it sustains expectations of the effectiveness of certain norms, even though, in particular cases, it has not succeeded in securing the full implementation of those norms. And civic enforcement will become a major strut of international order if it can, by recruiting more and more private individuals, mobilize increasing support for the basic prescriptions of a world order of human dignity”.3 eia norms have exemplified this victory. They are now expected to be effective, and to support demands for sustainable development. Recommendations follow with regard to improving the timing of eias, follow-up programs, the organization of public participation, as well as the role of financial institutions.
Henry Sumner Maine, Dissertations on Early Law and Custom 389 (John Murray. 1883).
Mahnoush H. Arsanjani, The Uses and Abuses of Illusion in International Politics, in Looking to the Future – Essays in International Law in Honor of W. Michael Reisman 58 (Mahnoush H. Arsanjani, et al. eds., 2011).
W. Michael Reisman, Making International Humanitarian Law Effective: the Case for Civic Enforcement, in The United Nations: a Reassessment – Sanctions, Peacekeeping, and Humanitarian Assistance 37–38 (John M. Paxman & George T. Boggs eds., 1973).