Principles of international environmental protection - Introduction to International Environmental Law - page 103

It is important to examine the contents of such a general principle more
closely. Violation of the no-harm principle is considered to be any activity that
fulfi ls the following criteria:

1 Activities by a state - or by a private enterprise that the state has permitted

to operate - thereby causing pollution in another state.

2 Transboundary environmental harm must be 'signifi cant'; that is, minor

transboundary pollution is legal.

3 The polluting state has been negligent (that is, has not exercised due

diligence). If harm is caused to another state when the state of origin has
taken careful precautions to ensure that no transboundary environmental
harm should be caused, the state will not be responsible.

4 The affected state is able to demonstrate the connection between the

environmental harm and the origin of pollution in the source state: that
is, it can demonstrate a causal link.

The no-harm principle is expressed in a general way. It therefore requires both
internal action by a state (for example, establishing permit procedures for
projects that are known to be potentially polluting and regulating them to mini-
mize impact) and agreements with other states so that no signifi cant transbound-
ary pollution harm occurs. Principle 19 of the Rio 1992 Declaration requires
prior notifi cation and information from a state, if signifi cant environmental
harm could potentially be caused in the territory of another. The state of origin
is further required to consult the affected state at an early stage and in good faith.
In the 2010 Pulp Mills case between Argentina and Uruguay (relating to the
construction of a pulp mill on the Uruguayan side of the boundary river),
the International Court of Justice established that, by virtue of general inter-
national law, the states must prepare an environmental impact assessment
(EIA), to assess the environmental impact of potentially harmful activities on
other states prior to authorizing the activities. However, the Court's judgment
does leave considerable scope for interpretation as to what kind of an EIA
system the states may wish to establish.
The most important treaty on intergovernmental communication proce-
dures in case of transboundary environmental impact is the Espoo Convention
on Environmental Impact Assessment in a Transboundary Context. The
Espoo Convention obliges the party of origin of a proposed project to notify
the affected party if it is likely that there will be signifi cant environmental
impact on the territory of the latter. The affected party and its public are then
entitled to participate in the national EIA procedure in the party of origin and
to comment on the transboundary environmental impact. The affected party
should notify the party of origin of its opinion on the proposed project in
consultations between the states. The party of origin (and normally its permit
decision-maker) shall take all the comments by the affected party and its public
into account when making a decision whether or not to license a project, and
it shall submit this decision to the affected party once it has been made. The
parties can agree on the monitoring of the impact.