диссертация (1169188), страница 95
Текст из файла (страница 95)
Anglo-American doctrines on EIA in the Arctic contextThe international legal regime of protection of the environment in the Arctic,rational management of its mineral and living resources at present, as alreadynoted, is not defined in detail and is not perfect in all its much-needed aspects. Thissituation may last many more years. However, the problem of creation of legalmechanisms at both the international and national levels in order to conserve theArctic ecosystem is becoming more and more urgent. First of all, this is theconsequence of climate change and related social and economic change.
This,primarily, concerns the intensification of the Arctic shipping and exploitation ofArctic oil and gas and other mineral resources, especially by Norway.According to the majority of Western analysts, today, the proliferation of oiland gas development operations in the Arctic that lack adequate regulation, iscreating a real and a most fundamental threat to the Arctic ecosystem, whose wellbeing is, as it has been underlined on numerous occasions, important for thebiosphere as a whole. Oil and oil product pollution is one of the predominant typesof pollution in the Arctic. This category also includes pollution with heavy metals,resistant organic matter, solid waste, and radioactive pollution. It is well-knownthat in Arctic conditions, oil and oil products are especially dangerous due to slowbiochemical degradation at low temperatures.
Oil spilled in the Arctic seas ends upon the coast or ice fields where temperature is even lower than in the water, sothere is practically no biodegradation. Such oil is preserved for decades (andpossibly for centuries). Oil pollution primarily causes suffering for birds, as well as420seals, blue and fin whales. Evidence of the extremely negative impact of oil spillsfor whale populations were registered in the Northern hemisphere on manyoccasions.The interaction of Arctic states for conserving nature within the ArcticCouncil is discussed in the Action Plan to Eliminate Pollution in the Arctic,programme for the Protection of Arctic Marine Environment (PAME), programmefor the Conservation of Arctic Flora and Fauna (CAFF).
There also exist treatyrules. However, the subject matter scope of environmental, or, to be more precise,environmental and social, cooperation of Arctic states is fragmentary and in lightof the increasing anthropogenic factor in the Arctic appears to be clearlyinsufficient.In this regard, scholars are trying to find ways to adapt legal mechanismsthat have already been tested in the conservation of nature and natural resourcemanagement, to the Arctic given its international legal peculiarities and naturaluniqueness. First of all, they turn to the procedure of environmental impactassessment (EIA). One can claim that currently EIA plays the leading role amonglegal means used in this field.It is worth recalling that EIA was first introduced in the U.S.
under the 1969National Environmental Policy Act.570 In line with the American model, which wasgenerally adopted in Europe later, too, the initiator of economic operations, prior toa decision on carrying out a project, should prepare a special document (report) onthe impact the project is going to have on the environment. Such a documentshould be a precise projection and part of the decision-making, rather than ajustification of a decision already made. The impact assessment should coveraspects such as substantiating the need for the project, as well as alternatives(including possible refusal to conduct any new activities in the region in question).570Federal Environmental Law. 999th ed.
West Group 1999, 42 U.S.C.A. §§ 4321 to 4370b. Responsibility forenforcing and analyzing the observance of this law is placed on a special body created under the U.S. President – theCouncil on Environmental Quality, that issued a number of documents regulating specific aspects of EIA. In 1979,the Council approved the EIA Regulations, substantially amended later in 1986.421A vital aspect of EIA is the involvement of the population of the area where aneconomic project is planned, in deciding as to whether to conduct it at all.US legislation and practice in conducting prior assessment of environmentaleffects was, as we know, adopted in Europe. During that period, the folowingrespective laws and other legal acts were adopted in Germany (1990), Greece(1986), Ireland (1989), Denmark (1989), Italy (1988), the Netherlands (1987),Spain (1987), Portugal (1990), etc.
Every national EIA system, of course, has itspeculiarities, but the main parameters of these systems have much in common.Directive 85/337/ЕЕС of 27 June 1985 became the first document of theEuropean Economic Community (and is still in force in the EU) that defined thefundamentals of this procedure. The Community’s version requires that assessmentdefine direct and indirect effect of the project on man, flora and fauna; soil, water,air, climate and landscape; the interrelation of these factors; material objects andcultural heritage. The state must ensure that every request for authorization of anyoperations and information on the project are available to the population, and thatthe population has an opportunity to voice its opinion before the project begins.
Ifthe project can have transboundary effects, information thereon should be sent toother states for potential consultations as well.Despite problems and violations, EIA remains one of the most dynamicallyevolving mechanisms. Its current version takes into account, in particular, theBiodiversity Convention, the Convention on Environmental Impact Assessment ina Transboundary Context, the Aarhus Convention.With respect to the Arctic, EIA is being developed within internationalcooperation by the Arctic Council.
Scholarly literature mostly refers to its wellknown Offshore Oil and Gas Guidelines. EIA is the focus of serious attention inthis document. The Guidelines’ provisions are formulated subject to the proceduresin effect in Arctic states. Many of them have common features. They concentrateon the assessment of impact on ecosystems and socio-economic phenomena;include a long-term impact assessment, the cumulative effect of oil and gas422development operations on other activities. Moreover, they take account ofcompeting interests.The Arctic Council also drafted the 2005 AEPS Guidelines for EnvironmentImpact Assessment for the Arctic.The assessment should cover impact across a wide spectrum of factors:-communities (including traditional, of indigenous peoples);-cultural heritage;-social and economic systems;-types of activities (including tourism, scientific studies, fisheries andnavigation);-landscape;-permafrost zones;-climate;-flora and fauna including sea mammals;-quality of water, air and sedimentary rock;-ports;-ice sheet dynamics;-their interaction.The procedure produced by the Arctic Council provides for the usualconsultations of all interested parties with a dispute settlement mechanism basedon publicity and transparency.Both of the abovementioned Guidelines of the Arctic Council are asystematization and generalization of national practices and can serve as a modelto develop the EIA for Arctic conditions.
But they are not binding.The multi-faceted consideration of social, economic, environmental andcultural factors, and the population’s involvement in their planning, as well as thepossibility of finding a compromise solution for all interested parties, makes thisprocedure very promising for the conservation of the Arctic ecosystem andensuring social and economic development not only in the interests of largebusinesses, but also of local communities. For this reason, some specialists, in423attributing to it a big role in future international cooperation in the Arctic, putforward the idea of a mandatory pan-Arctic EIA.571On the face of it, this idea comes across as rather appealing: economicactivities (in the Arctic (oil and gas production, navigation, etc.)) will be subject toa prior impact assessment.
But a closer look raises a multitude of questions, as, itappears that the authors of the idea are trying to apply the EU legal standards to aregion different from Europe by all parameters.First of all, it is unclear what a “pan-Arctic” EIA means. The procedureitself, as already mentioned, is conducted pursuant to national laws. The EIA in atransboundary context consists in states cooperating in providing data and holdingconsultations to strike a compromise. But the procedure itself is run by each stateas per its domestic laws.Perhaps the authors meant applying that procedure in the whole of theArctic? Or on the entire Arctic Ocean including its Arctic seas? In this regard, it isinteresting to look at the reflections of a Finnish Professor, Mr. Koivurova. Hebelieves that the starting point here is the no-harm principle and relies on the ICJjudgments in the Cases concerning the Gabcikovo-Nagymaros Project (Hungary v.Sloakia)572and concerning Pulp Mills on the River Uruguay (Argentinev.Uruguay),573 where the Court recognized this principle as part of internationalenvironmental law.
However, the Professor notes, the practice of states for theconstant consideration of impact of any activities on the environment beyond theirregistration never formed. Thus, for instance, one can say that international lawrequires refraining from harm to the marine environment on the high seas andconducting EIAs in that regard. But it is hard to say whether this requirement isobserved. UNCLOS contains two articles, Art. 206 and 205, providing for EIA.571Cavalieri S. and Kreamer R.A. Transatlantic Policy Options to Address the Rapidly Changing Arctic.
/Environmental Security in the Arctic Ocean. Ed. by P.A. Berkman and A.N. Vylegzhanin. Dordrecht, 2013. P. 189.572Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7.573Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p. 14.424Undoubtedly, the scholar writes, those articles oblige state parties to conduct EIA,but the Convention contains no clear-cut provisions on the procedure itself.574Going back to the idea of a pan-Arctic EIA, we can say that the generalinternational legal framework – first of all, UNCLOS with its Art.
205-206 – hasbeen in place since 1982 (adoption), 1994 (entry into force). But for over thirtyyears, no steps have been taken to specify these provisions for Arctic conditions orto develop any coordinated application practice (despite all the Arctic states butone being parties to UNCLOS).Yet more complications stand on the path to applying EIA to the Arctic. Asnoted above, its crucial aspect is involving the population.
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