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ii. Multilateral Treaties

a. Regional Treaties

5. ASEAN Agreement on the Conservation of Nature and Natural Resources [Kuala Lumpur, 9 July 1985][7]

[The Contracting Parties]

...

Recognizing the importance of natural resources for present and future generations;

Conscious of their ever-growing value from a scientific, cultural, social and economic point of view;

Conscious also that the interrelationship between conservation and socio-economic development implies both that conservation is necessary to ensure sustainability of development, and that socio-economic development is necessary for the achievement of conservation on a lasting basis;

Recognizing the interdependence of living resources, between them and with other natural resources, within ecosystems of which they are part;

Wishing to undertake individual and joint action for the conservation and management of their living resources and the other natural elements on which they depend;

Recognizing that international co-operation is essential to attain many of these goals;

Convinced that an essential means to achieve such concerted action is the conclusion and implementation of an Agreement;

Have agreed as follows:

Chapter I - Conservation and development

Article 1 - Fundamental principle

1. The Contracting Parties, within the framework of their respective national laws, undertake to adopt singly, or where necessary and appropriate through concerted action, the measures necessary to maintain essential ecological processes and life-support systems, to preserve genetic diversity, and to ensure the sustainable utilization of harvested natural resources under their jurisdiction in accordance with scientific principles and with a view to attaining the goal of sustainable development.

2. To this end they shall develop national conservation strategies, and shall co-ordinate such strategies within the framework of a conservation strategy for the Region.

Article 2 - Development planning

1. The Contracting Parties shall take all necessary measures, within the framework of their respective national laws, to ensure that conservation and management of natural resources are treated as an integral part of development planning at all stages and at all levels.

2. To that effect they shall, in the formulation of all development plans, give as full consideration to ecological factors as to economic and social ones.

3. The Contracting Parties shall, where necessary, take appropriate action with a view to conserving and managing natural resources of significant importance for two or several Contracting Parties.

Chapter II - Conservation of species and ecosystems

[Omitted: Article 3 - Species - Genetic diversity, Article 4 - Species -Sustainable use, Article 5 - Species - Endangered and endemic]

Article 6 - Vegetation cover and forest resources

...

(e) designate areas whose primary function shall be the maintenance of soil quality in the catchment considered and the regulation of the quantity and quality of the water delivered from it;

...

Article 7 - Soil

1. The Contracting Parties shall, in view of the role of soil in the functioning of natural ecosystems, take measures, wherever possible towards soil conservation, improvement and rehabilitation; they shall, in particular, endeavour to take steps to prevent soil erosion and other forms of degradation, and promote measures which safeguard the processes of organic decomposition and thereby its continuing fertility.

2. To that effect, they shall, in particular, endeavour to:

(a) establish land use policies aimed at avoiding losses of vegetation cover, substantial soil losses, and damages to the structure of the soil;

(b) take all necessary measures to control erosion, especially as it may affect coastal or freshwater ecosystems, lead to siltation of downstream areas such as lakes or vulnerable ecosystems such as coral reefs, or damage critical habitats, in particular that of endangered or endemic species;

(c) take appropriate measures to rehabilitate eroded or degraded soils including rehabilitation of soil affected by mineral exploitation.

Article 8 - Water

1. The Contracting Parties shall, in view of the role of water in the functioning of natural ecosystems, take all appropriate measures towards the conservation of their underground and surface water resources.

2. They shall, to that effect, in particular, endeavour to:

(a) undertake and promote the necessary hydrological research especially with a view to ascertaining the characteristics of each watershed;

(b) regulate and control water utilization with a view to achieving sufficient and continuous supply of water for, inter alia, the maintenance of natural life supporting systems and aquatic fauna and flora;

(c) when planning and carrying out water resource development projects take fully into account possible effects of such projects on natural processes or on other renewable natural resources and prevent or minimize such effects.

[Omitted: Article 9 - Air]

Chapter III - Conservation of ecological processes

Article 10 - Environmental degradation

The Contracting Parties, with a view to maintaining the proper functioning of ecological processes, undertake, wherever possible, to prevent, reduce and control degradation of the natural environment and, to this end, shall endeavour to undertake, in addition to specific measures referred to in the following article:

(a) to promote environmentally sound agricultural practice by, inter alia, controlling the application of pesticides, fertilizers and other chemical products for agricultural use, and by ensuring that agricultural development schemes, in particular for wetland drainage or forest clearance, pay due regard to the need to protect critical habitats as well as endangered and economically important species;

(b) to promote pollution control and the development of environmentally sound industrial processes and products;

(c) to promote adequate economic or fiscal incentives for the purposes of sub-paragraphs (a) and (b) above;

(d) as far as possible to consider the originator of the activity which may lead to environmental degradation responsible for its prevention, reduction and control as well as, wherever possible, for rehabilitation and remedial measures required;

(e) to take into consideration, when authorizing activities likely to affect the natural environment, the foreseeable interactions between the new activities proposed and those already taking place in the same area, and the result of such interactions on the air, waters and soils of the area;

(f) to pay particular attention to the regulation of activities which may have adverse effects on processes which are ecologically essential or on areas which are particularly important or sensitive from an ecological point of view, such as the breeding and feeding grounds of harvested species.

Article 11 - Pollution

The Contracting Parties, recognizing the adverse effect that polluting discharges or emissions may have on natural processes and the functioning of natural ecosystems as well as on each of the individual ecosystem components, especially animal and plants species, shall endeavour to prevent, reduce and control such discharges, emissions or applications in particular by:

(a) submitting activities likely to cause pollution of the air, soil, freshwater, or the marine environment, to controls which shall take into consideration both the cumulative effects of the pollutants concerned and the self-purificating aptitude of the recipient natural environment;

(b) making such controls conditional on, inter alia, appropriate treatment of polluting emissions; and

(c) establishing national environmental quality monitoring programmes, particular attention being paid to the effects of pollution on natural ecosystems, and co-operation in such programmes for the Region as a whole.

Chapter IV - Environmental planning measures

Article 12 - Land use planning

1. The Contracting Parties shall, wherever possible in the implementation of their development planning, give particular attention to the national allocation of land usage. They shall endeavour to take the necessary measures to ensure the integration of natural resource conservation into the land use planning process and shall, in the preparation and implementation of specific land use plans at all levels, give as full consideration as possible to ecological factors as to economic and social ones. In order to achieve optimum sustainable land use, they undertake to base their land use plans as far as possible on the ecological capacity of the land.

2. The Contracting Parties shall, in carrying out the provisions of paragraph 1 above, particularly consider the importance of retaining the naturally high productivity of areas such as coastal zones and wetlands.

3. They shall, where appropriate, co-ordinate their land use planning with a view to conserving and managing natural resources of significant importance for two or several Contracting Parties.

Article 13 - Protected areas

1. The Contracting Parties shall as appropriate establish, in areas under their jurisdiction, terrestrial, freshwater, coastal or marine protection areas for the purpose of safeguarding:

- the ecological and biological processes essential to the functioning of the ecosystems of the Region;

- representative samples of all types of ecosystem of the Region;

- satisfactory population levels for the largest possible number of species of fauna and flora belonging to those ecosystems;

- areas of particular importance because of their scientific, educational, aesthetic, or cultural interest;

and taking into account their importance in particular as:

- the natural habitat of species of fauna and flora, particularly rare or endangered or endemic species;

- zones necessary for the maintenance of exploitable stocks of economically important species;

- pools of genetic material and safe refuges for species, especially endangered ones;

- sites of ecological, aesthetic or cultural interest;

- reference sources for scientific research;

- areas for environmental education.

They shall, in particular, take all measures possible in their power to preserve those areas which are of an exceptional character and are peculiar to their country or the Region as well as those which constitute the critical habitats of endangered or rare species, of species that are endemic to a small area and of species that migrate between countries of Contracting Parties.

2. Protected areas established pursuant to this Agreement shall be regulated and managed in such a way as to further the objectives for the purpose of which they have been created. Contracting Parties shall, wherever possible, prohibit within such protected areas activities which are inconsistent with such objectives.

3. Protected areas shall include:

(a) National Parks:

(i) This expression denotes natural areas that are sufficiently large to allow for ecological self-regulation of one or several ecosystems, and which have not been substantially altered by human occupation or exploitation.

(ii) National Parks shall be placed under public control, their boundaries shall not be altered nor shall any portion of any National Park be alienated except by the highest competent authority.

(iii) National Parks shall be dedicated to conservation and to scientific, educational and recreational uses and the common welfare of the people.

(b) Reserves:

(i) This expression denotes areas set aside for the purpose of preserving a specific ecosystem, the critical habitat of certain species of fauna or flora, a water catchment area or for any other specific purpose relating to the conservation of natural resources or objects or areas of scientific, aesthetic cultural, educational or recreational interest.

(ii) After reserves have been established their boundaries shall not be altered nor shall any portion of such reserves be alienated except by the authority establishing them or by higher authority.

(iii) Reserves shall be dedicated to the purposes for which they have been created and, in the light of the national interests of the Contracting Parties, any activity inconsistent with such purposes shall be prohibited.

4. Contracting Parties shall, in respect of any protected area established pursuant to this Agreement:

(a) prepare a management plan and manage the area on the basis of this plan;

(b) establish, wherever appropriate, terrestrial or aquatic buffer zones that shall be located around protected areas and which, in the case of marine areas, may include coastal land areas or watersheds of rivers flowing into the protected area; in such buffer zones all activities that may have harmful consequences on the ecosystems that such areas purport to protect shall be prohibited or regulated and activities which are consistent with the purpose of the protected area shall be promoted.

5. Contracting Parties shall, in respect of any protected area established pursuant to this Agreement, endeavour to:

(a) prohibit the introduction of exotic animal or plant species;

(b) prohibit the use or release of toxic substances or pollutants which could cause disturbance or damage to protected ecosystems or to the species they contain;

(c) to the maximum extent possible, prohibit or control any activity exercised outside protected areas when such an activity is likely to cause disturbance or damage to the ecosystems or species that such protected areas purport to protect.

6. Contracting Parties shall co-operate in the development of principles, objectives, criteria and guidelines for the selection, establishment and management of protected areas in the Region with a view to establishing a co-ordinated network of protected areas throughout the Region, giving particular attention to those of regional importance. An Appendix containing such principles, objectives, criteria and guidelines shall be drawn up in the light of the best scientific evidence as adapted to the conservation requirements of the Region and shall be adopted by a meeting of Contracting Parties.

7. In addition to the establishment of the protected areas referred to in paragraph 3 of this Article, Contracting Parties shall promote, through the adoption of appropriate measures, the conservation of natural areas by private owners, community or local authorities.

Article 14 - Impact assessment

1. The Contracting Parties undertake that proposals for any activity which may significantly affect the natural environment shall as far as possible be subjected to an assessment of their consequences before they are adopted, and they shall take into consideration the results of this assessment in their decision-making process.

2. In those cases where any such activities are undertaken, the Contracting Parties shall plan and carry them out so as to overcome or minimize any assessed adverse effects and shall monitor such effects with a view to taking remedial action as appropriate.

[Omitted: Chapter V - National supporting measures: Article 15 - Scientific research, Article 16 - Education, information and participation of the public, training, Article 17 - Administrative machinery]

Chapter VI - International co-operation

[Omitted: Article 18 - Co-operative activities]

Article 19 - Shared resources

1. Contracting Parties that share natural resources shall co-operate concerning their conservation and harmonious utilization, taking into account the sovereignty, rights and interests of the Contracting Parties concerned in accordance with generally accepted principles of international law.

2. To that end, they shall, in particular:

(a) co-operate with a view to controlling, preventing, reducing or eliminating adverse environmental effects which may result in one Contracting Party from the utilization of such resources in another Party;

(b) endeavour to conclude bilateral or multilateral agreements in order to secure specific regulation of their conduct in respect of the resources concerned;

(c) as far as possible, make environmental assessments prior to engaging in activities with respect of shared natural resources which may create a risk of significantly affecting the environment of another sharing Contracting Party or other sharing Contracting Parties;

(d) notify in advance the other sharing Contracting Party or the other sharing Contracting Parties of pertinent details of plans to initiate, or make a change in, the conservation of utilization of the resource which can reasonably be expected to affect significantly the environment in the territory of the other Contracting Party or Contracting Parties;

(e) upon request of the other sharing Contracting Party or sharing Contracting Parties, enter into consultation concerning the above-mentioned plans;

(f) inform the other sharing Contracting Party or other sharing Contracting Parties of emergency situations or sudden grave natural events which may have repercussions on their environment;

(g) whenever appropriate, engage in joint scientific studies and assessments with a view to facilitating co-operation with regard to environmental problems related to a shared resource, on the basis of agreed data.

3. Contracting Parties shall especially co-operate together and, where appropriate, shall endeavour to co-operate with other Contracting Parties, with a view to:

(a) the conservation and management of:

- border or contiguous protected areas;
- shared habitats of species listed in Appendix 1;
- shared habitats of any other species of common concern;

...

Article 20 - Transfrontier environmental effects

1. Contracting Parties have in accordance with generally accepted principles of international law the responsibility of ensuring that activities under their jurisdiction or control do not cause damage to the environment or the natural resources under the jurisdiction of other Contracting Parties or of areas beyond the limits of national jurisdiction.

2. In order to fulfil this responsibility, Contracting Parties shall avoid to the maximum extent possible and reduce to the minimum extent possible adverse environmental effects of activities under their jurisdiction or control, including effects on natural resources, beyond the limits of their national jurisdiction.

3. To that effect, they shall endeavour:

(a) to make environmental impact assessment before engaging in any activity that may create a risk of significantly affecting the environment or the natural resources of another Contracting Party or the environment or natural resources beyond national jurisdiction;

(b) to notify in advance the other Contracting Party or Contracting Parties concerned of pertinent details of plans to initiate, or make a change in, activities which can reasonably be expected to have significant effects beyond the limits of national jurisdiction;

(c) to enter into consultation concerning the above-mentioned plans upon request of the Contracting Party or Contracting Parties in question;

(d) to inform the Contracting Party or Contracting Parties in question of emergency situations or sudden grave natural events which may have repercussion beyond national jurisdiction.

4. Contracting Parties shall, in particular, endeavour to refrain from actions which might directly or indirectly adversely affect wildlife habitats situated beyond the limits of national jurisdiction, especially habitats of species listed in Appendix 1 or habitats included in protected areas.

[Omitted: Chapter VII - International supporting measures: Article 21 - Meeting of the contracting parties, Article 22 - Secretariat, Article 23 - National focal points, Chapter VIII: Article 24 - Adoption of protocols, Article 25 - Amendment of the agreement, Article 26 - Appendices and amendments to appendices, Article 27 - Rules of procedure, Article 28 - Reports, Article 29 - Relationships with other agreements, Article 30 - Settlement and disputes, Article 31 - Ratification, Article 32 - Accession, Article 33 - Entry into force, Article 34 - Responsibility of the depositary, Article 35 - Deposit and registration, List of species for Appendix 1 A, List of species for Appendix 1 B]

6. Convention on Environmental Impact Assessment in a Transboundary Context [Espoo, 25 February 1991][8]

The Parties to this Convention,

Aware of the interrelationship between economic activities and their environmental consequences,

Affirming the need to ensure environmentally sound and sustainable development,

Determined to enhance international co-operation in assessing environmental impact in particular in a transboundary context,

Mindful of the need and importance to develop anticipatory policies and of preventing, mitigating and monitoring significant adverse environmental impact in general and more specifically in a transboundary context,

Recalling the relevant provisions of the Charter of the United Nations, the Declaration of the Stockholm Conference on the Human Environment, the Final Act of the Conference on Security and Co-operation in Europe (CSCE) and the Concluding Documents of the Madrid and Vienna Meetings of Representatives of the Participating States of the CSCE,

Commending the ongoing activities of States to ensure that, through their national legal and administrative provisions and their national policies, environmental impact assessment is carried out,

Conscious of the need to give explicit consideration to environmental factors at an early stage in the decision-making process by applying environmental impact assessment, at all appropriate administrative levels, as a necessary tool to improve the quality of information presented to decision makers so that environmentally sound decisions can be made paying careful attention to minimizing significant adverse impact, particularly in a transboundary context,

...

Have agreed as follows:

Article 1 - Definitions

For the purposes of this Convention,

(i) "Parties" means, unless the text otherwise indicates, the Contracting Parties to this Convention;

(ii) "Party of origin" means the Contracting Party or Parties to this Convention under whose jurisdiction a proposed activity is envisaged to take place;

(iii) "Affected Party" means the Contracting Party or Parties to this Convention likely to be affected by the transboundary impact of a proposed activity;

(iv) "Concerned Parties" means the Party of origin and the affected Party of an environmental impact assessment pursuant to this Convention;

(v) "Proposed activity" means any activity or any major change to an activity subject to a decision of a competent authority in accordance with an applicable national procedure;

(vi) "Environmental impact assessment" means a national procedure for evaluating the likely impact of a proposed activity on the environment;

(vii) "Impact" means any effect caused by a proposed activity on the environment including human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interaction among these factors; it also includes effects on cultural heritage or socio-economic conditions resulting from alterations to those factors;

(viii) "Transboundary impact" means any impact, not exclusively of a global nature, within an area under the jurisdiction of a Party caused by a proposed activity the physical origin of which is situated wholly or in part within the area under the jurisdiction of another Party;

(ix) "Competent authority" means the national authority or authorities designated by a Party as responsible for performing the tasks covered by this Convention and/or the authority or authorities entrusted by a Party with decision-making powers regarding a proposed activity;

(x) "The Public" means one or more natural or legal persons.

Article 2 - General provisions

1. The Parties shall, either individually or jointly, take all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impact from proposed activities.

2. Each Party shall take the necessary legal, administrative or other measures to implement the provisions of this Convention, including, with respect to proposed activities listed in Appendix I that are likely to cause significant adverse transboundary impact, the establishment of an environmental impact assessment procedure that permits public participation and preparation of the environmental impact assessment documentation described in Appendix II.

3. The Party of origin shall ensure that in accordance with the provisions of this Convention an environmental impact assessment is undertaken prior to a decision to authorize or undertake a proposed activity listed in Appendix I that is likely to cause a significant adverse transboundary impact.

4. The Party of origin shall, consistent with the provisions of this Convention, ensure that affected Parties are notified of a proposed activity listed in Appendix I that is likely to cause a significant adverse transboundary impact.

5. Concerned Parties shall, at the initiative of any such Party, enter into discussions on whether one or more proposed activities not listed in Appendix I is or are likely to cause a significant adverse transboundary impact and thus should be treated as if it or they were so listed. Where those Parties so agree, the activity or activities shall be thus treated. General guidance for identifying criteria to determine significant adverse impact is set forth in Appendix III.

6. The Party of origin shall provide, in accordance with the provisions of this Convention, an opportunity to the public in the areas likely to be affected to participate in relevant environmental impact assessment procedures regarding proposed activities and shall ensure that the opportunity provided to the public of the affected Party is equivalent to that provided to the public of the Party of origin.

7. Environmental impact assessments as required by this Convention shall, as a minimum requirement, be undertaken at the project level of the proposed activity. To the extent appropriate, the Parties shall endeavour to apply the principles of environmental impact assessment to policies, plans and programmes.

8. The provisions of this Convention shall not affect the right of Parties to implement national laws, regulations, administrative provisions or accepted legal practices protecting information the supply of which would be prejudicial to industrial and commercial secrecy or national security.

9. The provisions of this Convention shall not affect the right of particular Parties to implement, by bilateral or multilateral agreement where appropriate, more stringent measures than those of this Convention.

10. The provisions of this Convention shall not prejudice any obligations of the Parties under international law with regard to activities having or likely to have a transboundary impact.

Article 3 - Notification

1. For a proposed activity listed in Appendix I that is likely to cause a significant adverse transboundary impact, the Party of origin shall, for the purposes of ensuring adequate and effective consultations under Article 5, notify any Party which it considers may be an affected Party as early as possible and no later than when informing its own public about that proposed activity.

2. This notification shall contain, inter alia:

(a) Information on the proposed activity, including any available information on its possible transboundary impact;

(b) The nature of the possible decision; and

(c) An indication of a reasonable time within which a response under paragraph 3 of this Article is required, taking into account the nature of the proposed activity;

and may include the information set out in paragraph 5 of this Article.

3. The affected Party shall respond to the Party of origin within the time specified in the notification, acknowledging receipt of the notification, and shall indicate whether it intends to participate in the environmental impact assessment procedure.

4. If the affected Party indicates that it does not intend to participate in the environmental impact assessment procedure, or if it does not respond within the time specified in the notification, the provisions in paragraphs 5, 6, 7 and 8 of this Article and in Articles 4 to 7 will not apply. In such circumstances the right of a Party of origin to determine whether to carry out an environmental impact assessment on the basis of its national law and practice is not prejudiced.

5. Upon receipt of a response from the affected Party indicating its desire to participate in the environmental impact assessment procedure, the Party of origin shall, if it has not already done so, provide to the affected Party:

(a) Relevant information regarding the environmental impact assessment procedure, including an indication of the time schedule for transmittal of comments; and

(b) Relevant information on the proposed activity and its possible significant adverse transboundary impact.

6. An affected Party shall, at the request of the Party of origin, provide the latter with reasonably obtainable information relating to the potentially affected environment under the jurisdiction of the affected Party, where such information is necessary for the preparation of the environmental impact assessment documentation. The information shall be furnished promptly and, as appropriate, through a joint body where one exists.

7. When a Party considers that it would be affected by a significant adverse transboundary impact of a proposed activity listed in Appendix I, and when no notification has taken place in accordance with paragraph 1 of this Article, the concerned Parties shall, at the request of the affected Party, exchange sufficient information for the purposes of holding discussions on whether there is likely to be a significant adverse transboundary impact. If those Parties agree that there is likely to be a significant adverse transboundary impact, the provisions of this Convention shall apply accordingly. If those Parties cannot agree whether there is likely to be a significant adverse transboundary impact, any such Party may submit that question to an inquiry commission in accordance with the provisions of Appendix IV to advise on the likelihood of significant adverse transboundary impact, unless they agree on another method of settling this question.

8. The concerned Parties shall ensure that the public of the affected Party in the areas likely to be affected be informed of, and be provided with possibilities for making comments or objections on, the proposed activity, and for the transmittal of these comments or objections to the competent authority of the Party of origin, either directly to this authority or, where appropriate, through the Party of origin.

Article 4 - Preparation of the environmental impact assessment documentation

1. The environmental impact assessment documentation to be submitted to the competent authority of the Party of origin shall contain, as a minimum, the information described in Appendix II.

2. The Party of origin shall furnish the affected Party, as appropriate through a joint body where one exists, with the environmental impact assessment documentation. The concerned Parties shall arrange for distribution of the documentation to the authorities and the public of the affected Party in the areas likely to be affected and for the submission of comments to the competent authority of the Party of origin, either directly to this authority or, where appropriate, through the Party of origin within a reasonable time before the final decision is taken on the proposed activity.

Article 5 - Consultations on the basis of the environmental impact assessment documentation

The Party of origin shall, after completion of the environmental impact assessment documentation, without undue delay enter into consultations with the affected Party concerning, inter alia, the potential transboundary impact of the proposed activity and measures to reduce or eliminate its impact. Consultations may relate to:

(a) Possible alternatives to the proposed activity, including the no-action alternative and possible measures to mitigate significant adverse transboundary impact and to monitor the effects of such measures at the expense of the Party of origin;

(b) Other forms of possible mutual assistance in reducing any significant adverse transboundary impact of the proposed activity; and

(c) Any other appropriate matters relating to the proposed activity.

The Parties shall agree, at the commencement of such consultations, on a reasonable timeframe for the duration of the consultation period. Any such consultations may be conducted through an appropriate joint body, where one exists.

Article 6 - Final decision

1. The Parties shall ensure that, in the final decision on the proposed activity, due account is taken of the outcome of the environmental impact assessment, including the environmental impact assessment documentation, as well as the comments thereon received pursuant to Article 3, paragraph 8 and Article 4, paragraph 2, and the outcome of the consultations as referred to in Article 5.

2. The Party of origin shall provide to the affected Party the final decision on the proposed activity along with the reasons and considerations on which it was based.

3. If additional information on the significant transboundary impact of a proposed activity, which was not available at the time a decision was made with respect to that activity and which could have materially affected the decision, becomes available to a concerned Party before work on that activity commences, that Party shall immediately inform the other concerned Party or Parties. If one of the concerned Parties so requests, consultations shall be held as to whether the decision needs to be revised.

Article 7 - Post-project analysis

1. The concerned Parties, at the request of any such Party, shall determine whether, and if so to what extent, a post-project analysis shall be carried out, taking into account the likely significant adverse transboundary impact of the activity for which an environmental impact assessment has been undertaken pursuant to this Convention. Any post-project analysis undertaken shall include, in particular, the surveillance of the activity and the determination of any adverse transboundary impact. Such surveillance and determination may be undertaken with a view to achieving the objectives listed in Appendix V.

2. When, as a result of post-project analysis, the Party of origin or the affected Party has reasonable grounds for concluding that there is a significant adverse transboundary impact or factors have been discovered which may result in such an impact, it shall immediately inform the other Party. The concerned Parties shall then consult on necessary measures to reduce or eliminate the impact.

[Omitted: Article 8 - Bilateral and multilateral co-operation, Article 9 - Research programmes, Article 10 - Status of the appendices, Article 11 - Meeting of parties, Article 12 - Right to vote, Article 13 - Secretariat, Article 14 - Amendments to the Convention, Article 15 - Settlement of disputes, Article 16 - Signature, Article 17 - Ratification, acceptance, approval and accession, Article 18 - Entry into force, Article 19 - Withdrawal, Article 20 - Authentic texts]

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Appendices

Appendix I - List of activities

...

10. Waste-disposal installations for the incineration, chemical treatment or landfill of toxic and dangerous wastes.

...

12. Groundwater abstraction activities in cases where the annual volume of water to be abstracted amounts to 10 million cubic metres or more.

...

14. Major mining, on-site extraction and processing of metal ores or coal.

...

Appendix II - Content of the environmental impact assessment documentation

Information to be included in the environmental impact assessment documentation shall, as a minimum, contain, in accordance with Article 4:

(a) A description of the proposed activity and its purpose;

(b) A description, where appropriate, of reasonable alternatives (for example, locational or technological) to the proposed activity and also the no-action alternative;

(c) A description of the environment likely to be significantly affected by the proposed activity and its alternatives;

(d) A description of the potential environmental impact of the proposed activity and its alternatives and an estimation of its significance;

(e) A description of mitigation measures to keep adverse environmental impact to a minimum;

(f) An explicit indication of predictive methods and underlying assumptions as well as the relevant environmental data used;

(g) An identification of gaps in knowledge and uncertainties encountered in compiling the required information;

(h) Where appropriate, an outline for monitoring and management programmes and any plans for post-project analysis; and

(i) A non-technical summary including a visual presentation as appropriate (maps, graphs, etc.).

Appendix III - General criteria to assist in the determination of the environmental significance of activities not listed in Appendix I

1. In considering proposed activities to which Article 2, paragraph 5, applies, the concerned Parties may consider whether the activity is likely to have a significant adverse transboundary impact in particular by virtue of one or more of the following criteria:

(a) Size: proposed activities which are large for the type of the activity;

(b) Location: proposed activities which are located in or close to an area of special environmental sensitivity or importance (such as wetlands designated under the Ramsar Convention, national parks, nature reserves, sites of special scientific interest, or sites of archaeological, cultural or historical importance); also, proposed activities in locations where the characteristics of proposed development would be likely to have significant effects on the population;

(c) Effects: proposed activities with particularly complex and potentially adverse effects, including those giving rise to serious effects on humans or on valued species or organisms, those which threaten the existing or potential use of an affected area and those causing additional loading which cannot be sustained by the carrying capacity of the environment.

2. The concerned Parties shall consider for this purpose proposed activities which are located close to an international frontier as well as more remote proposed activities which could give rise to significant transboundary effects far removed from the site of development.

Appendix IV - Inquiry procedure

1. The requesting Party or Parties shall notify the secretariat that it or they submit(s) the question of whether a proposed activity listed in Appendix I is likely to have a significant adverse transboundary impact to an inquiry commission established in accordance with the provisions of this Appendix. This notification shall state the subject-matter of the inquiry. The secretariat shall notify immediately all Parties to this Convention of this submission.

2. The inquiry commission shall consist of three members. Both the requesting party and the other party to the inquiry procedure shall appoint a scientific or technical expert, and the two experts so appointed shall designate by common agreement the third expert, who shall be the president of the inquiry commission. The latter shall not be a national of one of the parties to the inquiry procedure, nor have his or her usual place of residence in the territory of one of these parties, nor be employed by any of them, nor have dealt with the matter in any other capacity.

3. If the president of the inquiry commission has not been designated within two months of the appointment of the second expert, the Executive Secretary of the Economic Commission for Europe shall, at the request of either party, designate the president within a further two-month period.

4. If one of the parties to the inquiry procedure does not appoint an expert within one month of its receipt of the notification by the secretariat, the other party may inform the Executive Secretary of the Economic Commission for Europe, who shall designate the president of the inquiry commission within a further two-month period. Upon designation, the president of the inquiry commission shall request the party which has not appointed an expert to do so within one month. After such a period, the president shall inform the Executive Secretary of the Economic Commission for Europe, who shall make this appointment within a further two-month period.

5. The inquiry commission shall adopt its own rules of procedure.

6. The inquiry commission may take all appropriate measures in order to carry out its functions.

7. The parties to the inquiry procedure shall facilitate the work of the inquiry commission and, in particular, using all means at their disposal, shall:

(a) Provide it with all relevant documents, facilities and information; and
(b) Enable it, where necessary, to call witnesses or experts and receive their evidence.

8. The parties and the experts shall protect the confidentiality of any information they receive in confidence during the work of the inquiry commission.

9. If one of the parties to the inquiry procedure does not appear before the inquiry commission or fails to present its case, the other party may request the inquiry commission to continue the proceedings and to complete its work. Absence of a party or failure of a party to present its case shall not constitute a bar to the continuation and completion of the work of the inquiry commission.

10. Unless the inquiry commission determines otherwise because of the particular circumstances of the matter, the expenses of the inquiry commission, including the remuneration of its members, shall be borne by the parties to the inquiry procedure in equal shares. The inquiry commission shall keep a record of all its expenses, and shall furnish a final statement thereof to the parties.

11. Any Party having an interest of a factual nature in the subject-matter of the inquiry procedure, and which may be affected by an opinion in the matter, may intervene in the proceedings with the consent of the inquiry commission.

12. The decisions of the inquiry commission on matters of procedure shall be taken by majority vote of its members. The final opinion of the inquiry commission shall reflect the view of the majority of its members and shall include any dissenting view.

13. The inquiry commission shall present its final opinion within two months of the date on which it was established unless it finds it necessary to extend this time limit for a period which should not exceed two months.

14. The final opinion of the inquiry commission shall be based on accepted scientific principles. The final opinion shall be transmitted by the inquiry commission to the parties to the inquiry procedure and to the secretariat.

Appendix V - Post-project analysis

Objectives include:

(a) Monitoring compliance with the conditions as set out in the authorization or approval of the activity and the effectiveness of mitigation measures;

(b) Review of an impact for proper management and in order to cope with uncertainties;

(c) Verification of past predictions in order to transfer experience to future activities of the same type.

[Omitted: Appendix VI - Elements for bilateral and multilateral co-operation, Appendix VII - Arbitration]

7. Convention on the Protection and Use of Transboundary Watercourses and International Lakes [Helsinki, 17 March 1992][9]

Preamble

The Parties to this Convention,

Mindful that the protection and use of transboundary watercourses and international lakes are important and urgent tasks, the effective accomplishment of which can only be ensured by enhanced co-operation,

Concerned over the existence and threats of adverse effects, in the short or long term, of changes in the conditions of transboundary watercourses and international lakes on the environment, economies and well-being of the member countries of the Economic Commission for Europe (ECE),

Emphasizing the need for strengthened national and international measures to prevent, control and reduce the release of hazardous substances into the aquatic environment and to abate eutrophication and acidification, as well as pollution of the marine environment, in particular coastal areas, from land-based sources,

Commending the efforts already undertaken by the ECE Governments to strengthen co-operation, on bilateral and multilateral levels, for the prevention, control and reduction of transboundary pollution, sustainable water management, conservation of water resources and environmental protection,

Recalling the pertinent provisions and principles of the Declaration of the Stockholm Conference on the Human Environment, the Final Act of the Conference on Security and Co-operation in Europe (CSCE), the Concluding Documents of the Madrid and Vienna Meetings of Representatives of the Participating States of the CSCE, and the Regional Strategy for Environmental Protection and Rational Use of Natural Resources in ECE Member Countries covering the Period up to the Year 2000 and Beyond,

Conscious of the role of the United Nations Economic Commission for Europe in promoting international co-operation for the prevention, control and reduction of transboundary water pollution and sustainable use of transboundary waters, and in this regard recalling the ECE Declaration of Policy on Prevention and Control of Water Pollution, including Transboundary Pollution; the ECE Declaration of Policy on the Rational Use of Water; the ECE Principles Regarding Co-operation in the Field of Transboundary Waters; the ECE Charter on Groundwater Management; and the Code of Conduct on Accidental Pollution of Transboundary Inland Waters,

...

Emphasizing that co-operation between member countries in regard to the protection and use of transboundary waters shall be implemented primarily through the elaboration of agreements between countries bordering the same waters, especially where no such agreements have yet been reached,

Have agreed as follows:

Article 1 - Definitions

For the purposes of this Convention,

1. "Transboundary waters" means any surface or groundwaters which mark, cross or are located on boundaries between two or more States; wherever transboundary waters flow directly into the sea, these transboundary waters end at a straight line across their respective mouths between points on the low-water line of their banks;

2. "Transboundary impact" means any significant adverse effect on the environment resulting from a change in the conditions of transboundary waters caused by a human activity, the physical origin of which is situated wholly or in part within an area under the jurisdiction of a Party, within an area under the jurisdiction of another Party. Such effects on the environment include effects on human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interaction among these factors; they also include effects on the cultural heritage or socio-economic conditions resulting from alterations to those factors;

3. "Party" means, unless the text otherwise indicates, a Contracting Party to this Convention;

4. "Riparian Parties" means the Parties bordering the same transboundary waters;

5. "Joint body" means any bilateral or multilateral commission or other appropriate institutional arrangements for co-operation between the Riparian Parties;

6. "Hazardous substances" means substances which are toxic, carcinogenic, mutagenic, teratogenic or bio-accumulative, especially when they are persistent;

7. "Best available technology" (the definition is contained in Annex I to this Convention).

Part I - Provisions relating to all Parties

Article 2 - General provisions

1. The Parties shall take all appropriate measures to prevent, control and reduce any transboundary impact.

2. The Parties shall, in particular, take all appropriate measures:

(a) To prevent, control and reduce pollution of waters causing or likely to cause transboundary impact;

(b) To ensure that transboundary waters are used with the aim of ecologically sound and rational water management, conservation of water resources and environmental protection;

(c) To ensure that transboundary waters are used in a reasonable and equitable way, taking into particular account their transboundary character, in the case of activities which cause or are likely to cause transboundary impact;

(d) To ensure conservation and, where necessary, restoration of ecosystems.

3. Measures for the prevention, control and reduction of water pollution shall be taken, where possible, at source.

4. These measures shall not directly or indirectly result in a transfer of pollution to other parts of the environment.

5. In taking the measures referred to in paragraphs 1 and 2 of this article, the Parties shall be guided by the following principles:

(a) The precautionary principle, by virtue of which action to avoid the potential transboundary impact of the release of hazardous substances shall not be postponed on the ground that scientific research has not fully proved a causal link between those substances, on the one hand, and the potential transboundary impact, on the other hand;

(b) The polluter-pays principle, by virtue of which costs of pollution prevention, control and reduction measures shall be borne by the polluter;

(c) Water resources shall be managed so that the needs of the present generation are met without compromising the ability of future generations to meet their own needs.

6. The Riparian Parties shall co-operate on the basis of equality and reciprocity, in particular through bilateral and multilateral agreements, in order to develop harmonized policies, programmes and strategies covering the relevant catchment areas, or parts thereof, aimed at the prevention, control and reduction of transboundary impact and aimed at the protection of the environment of transboundary waters or the environment influenced by such waters, including the marine environment.

7. The application of this Convention shall not lead to the deterioration of environmental conditions nor lead to increased transboundary impact.

8. The provisions of this Convention shall not affect the right of Parties individually or jointly to adopt and implement more stringent measures than those set down in this Convention.

Article 3 - Prevention, control and reduction

1. To prevent, control and reduce transboundary impact, the Parties shall develop, adopt, implement and, as far as possible, render compatible relevant legal, administrative, economic, financial and technical measures, in order to ensure, inter alia, that:

(a) The emission of pollutants is prevented, controlled and reduced at source through the application of, inter alia, low- and non-waste technology;

(b) Transboundary waters are protected against pollution from point sources through the prior licensing of waste-water discharges by the competent national authorities, and that the authorized discharges are monitored and controlled;

(c) Limits for waste-water discharges stated in permits are based on the best available technology for discharges of hazardous substances;

(d) Stricter requirements, even leading to prohibition in individual cases, are imposed when the quality of the receiving water or the ecosystem so requires;

(e) At least biological treatment or equivalent processes are applied to municipal waste water, where necessary in a step-by-step approach;

(f) Appropriate measures are taken, such as the application of the best available technology, in order to reduce nutrient inputs from industrial and municipal sources;

(g) Appropriate measures and best environmental practices are developed and implemented for the reduction of inputs of nutrients and hazardous substances from diffuse sources, especially where the main sources are from agriculture (guidelines for developing best environmental practices are given in Annex II to this Convention);

(h) Environmental impact assessment and other means of assessment are applied;

(i) Sustainable water-resources management, including the application of the ecosystems approach, is promoted;

(j) Contingency planning is developed;

(k) Additional specific measures are taken to prevent the pollution of groundwaters;

(l) The risk of accidental pollution is minimized.

2. To this end, each Party shall set emission limits for discharges from point sources into surface waters based on the best available technology, which are specifically applicable to individual industrial sectors or industries from which hazardous substances derive. The appropriate measures mentioned in paragraph 1 of this article to prevent, control and reduce the input of hazardous substances from point and diffuse sources into waters, may, inter alia, include total or partial prohibition of the production or use of such substances. Existing lists of such industrial sectors or industries and of such hazardous substances in international conventions or regulations, which are applicable in the area covered by this Convention, shall be taken into account.

3. In addition, each Party shall define, where appropriate, water-quality objectives and adopt water-quality criteria for the purpose of preventing, controlling and reducing transboundary impact. General guidance for developing such objectives and criteria is given in Annex III to this Convention. When necessary, the Parties shall endeavour to update this annex.

Article 4 - Monitoring

The Parties shall establish programmes for monitoring the conditions of transboundary waters.

Article 5 - Research and development

The Parties shall co-operate in the conduct of research into and development of effective techniques for the prevention, control and reduction of transboundary impact. To this effect, the Parties shall, on a bilateral and/or multilateral basis, taking into account research activities pursued in relevant international forums, endeavour to initiate or intensify specific research programmes, where necessary, aimed, inter alia, at:

(a) Methods for the assessment of the toxicity of hazardous substances and the noxiousness of pollutants;

(b) Improved knowledge on the occurrence, distribution and environmental effects of pollutants and the processes involved;

(c) The development and application of environmentally sound technologies, production and consumption patterns;

(d) The phasing out and/or substitution of substances likely to have transboundary impact;

(e) Environmentally sound methods of disposal of hazardous substances;

(f) Special methods for improving the conditions of transboundary waters;

(g) The development of environmentally sound water-construction works and water-regulation techniques;

(h) The physical and financial assessment of damage resulting from transboundary impact.

The results of these research programmes shall be exchanged among the Parties in accordance with Article 6 of this Convention.

Article 6 - Exchange of information

The Parties shall provide for the widest exchange of information, as early as possible, on issues covered by the provisions of this Convention.

Article 7 - Responsibility and liability

The Parties shall support appropriate international efforts to elaborate rules, criteria and procedures in the field of responsibility and liability.

Article 8 - Protection of information

The provisions of this Convention shall not affect the rights or the obligations of Parties in accordance with their national legal systems and applicable supranational regulations to protect information related to industrial and commercial secrecy, including intellectual property, or national security.

Part II - Provisions relating to Riparian Parties

Article 9 - Bilateral and multilateral co-operation

1. The Riparian Parties shall on the basis of equality and reciprocity enter into bilateral or multilateral agreements or other arrangements, where these do not yet exist, or adapt existing ones, where necessary to eliminate the contradictions with the basic principles of this Convention, in order to define their mutual relations and conduct regarding the prevention, control and reduction of transboundary impact. The Riparian Parties shall specify the catchment area, or part(s) thereof, subject to co-operation. These agreements or arrangements shall embrace relevant issues covered by this Convention, as well as any other issues on which the Riparian Parties may deem it necessary to co-operate.

2. The agreements or arrangements mentioned in paragraph 1 of this article shall provide for the establishment of joint bodies. The tasks of these joint bodies shall be, inter alia, and without prejudice to relevant existing agreements or arrangements, the following:

(a) To collect, compile and evaluate data in order to identify pollution sources likely to cause transboundary impact;

(b) To elaborate joint monitoring programmes concerning water quality and quantity;

(c) To draw up inventories and exchange information on the pollution sources mentioned in paragraph 2 (a) of this article;

(d) To elaborate emission limits for waste water and evaluate the effectiveness of control programmes;

(e) To elaborate joint water-quality objectives and criteria having regard to the provisions of Article 3, paragraph 3 of this Convention, and to propose relevant measures for maintaining and, where necessary, improving the existing water quality;

(f) To develop concerted action programmes for the reduction of pollution loads from both point sources (e.g. municipal and industrial sources) and diffuse sources (particularly from agriculture);

(g) To establish warning and alarm procedures;

(h) To serve as a forum for the exchange of information on existing and planned uses of water and related installations that are likely to cause transboundary impact;

(i) To promote co-operation and exchange of information on the best available technology in accordance with the provisions of Article 13 of this Convention, as well as to encourage co-operation in scientific research programmes;

(j) To participate in the implementation of environmental impact assessments relating to transboundary waters, in accordance with appropriate international regulations.

3. In cases where a coastal State, being Party to this Convention, is directly and significantly affected by transboundary impact, the Riparian Parties can, if they all so agree, invite that coastal State to be involved in an appropriate manner in the activities of multilateral joint bodies established by Parties riparian to such transboundary waters.

4. Joint bodies according to this Convention shall invite joint bodies, established by coastal States for the protection of the marine environment directly affected by transboundary impact, to co-operate in order to harmonize their work and to prevent, control and reduce the transboundary impact.

5. Where two or more joint bodies exist in the same catchment area, they shall endeavour to co-ordinate their activities in order to strengthen the prevention, control and reduction of transboundary impact within that catchment area.

Article 10 - Consultations

Consultations shall be held between the Riparian Parties on the basis of reciprocity, good faith and good-neighbourliness, at the request of any such Party. Such consultations shall aim at co-operation regarding the issues covered by the provisions of this Convention. Any such consultations shall be conducted through a joint body established under Article 9 of this Convention, where one exists.

Article 11 - Joint monitoring and assessment

1. In the framework of general co-operation mentioned in Article 9 of this Convention, or specific arrangements, the Riparian Parties shall establish and implement joint programmes for monitoring the conditions of transboundary waters, including floods and ice drifts, as well as transboundary impact.

2. The Riparian Parties shall agree upon pollution parameters and pollutants whose discharges and concentration in transboundary waters shall be regularly monitored.

3. The Riparian Parties shall, at regular intervals, carry out joint or co-ordinated assessments of the conditions of transboundary waters and the effectiveness of measures taken for the prevention, control and reduction of transboundary impact. The results of these assessments shall be made available to the public in accordance with the provisions set out in Article 16 of this Convention.

4. For these purposes, the Riparian Parties shall harmonize rules for the setting up and operation of monitoring programmes, measurement systems, devices, analytical techniques, data processing and evaluation procedures, and methods for the registration of pollutants discharged.

Article 12 - Common research and development

In the framework of general co-operation mentioned in Article 9 of this Convention, or specific arrangements, the Riparian Parties shall undertake specific research and development activities in support of achieving and maintaining the water-quality objectives and criteria which they have agreed to set and adopt.

Article 13 - Exchange of information between riparian parties

1. The Riparian Parties shall, within the framework of relevant agreements or other arrangements according to Article 9 of this Convention, exchange reasonably available data, inter alia, on:

(a) Environmental conditions of transboundary waters;

(b) Experience gained in the application and operation of best available technology and results of research and development;

(c) Emission and monitoring data;

(d) Measures taken and planned to be taken to prevent, control and reduce transboundary impact;

(e) Permits or regulations for waste-water discharges issued by the competent authority or appropriate body.

2. In order to harmonize emission limits, the Riparian Parties shall undertake the exchange of information on their national regulations.

3. If a Riparian Party is requested by another Riparian Party to provide data or information that is not available, the former shall endeavour to comply with the request but may condition its compliance upon the payment, by the requesting Party, of reasonable charges for collecting and, where appropriate, processing such data or information.

4. For the purposes of the implementation of this Convention, the Riparian Parties shall facilitate the exchange of best available technology, particularly through the promotion of: the commercial exchange of available technology; direct industrial contacts and co-operation, including joint ventures; the exchange of information and experience; and the provision of technical assistance. The Riparian Parties shall also undertake joint training programmes and the organization of relevant seminars and meetings.

Article 14 - Warning and alarm systems

The Riparian Parties shall without delay inform each other about any critical situation that may have transboundary impact. The Riparian Parties shall set up, where appropriate, and operate co-ordinated or joint communication, warning and alarm systems with the aim of obtaining and transmitting information. These systems shall operate on the basis of compatible data transmission and treatment procedures and facilities to be agreed upon by the Riparian Parties. The Riparian Parties shall inform each other about competent authorities or points of contact designated for this purpose.

Article 15 - Mutual assistance

1. If a critical situation should arise, the Riparian Parties shall provide mutual assistance upon request, following procedures to be established in accordance with paragraph 2 of this article.

2. The Riparian Parties shall elaborate and agree upon procedures for mutual assistance addressing, inter alia, the following issues:

(a) The direction, control, co-ordination and supervision of assistance;

(b) Local facilities and services to be rendered by the Party requesting assistance, including, where necessary, the facilitation of border-crossing formalities;

(c) Arrangements for holding harmless, indemnifying and/or compensating the assisting Party and/or its personnel, as well as for transit through territories of third Parties, where necessary;

(d) Methods of reimbursing assistance services.

Article 16 - Public information

1. The Riparian Parties shall ensure that information on the conditions of transboundary waters, measures taken or planned to be taken to prevent, control and reduce transboundary impact, and the effectiveness of those measures, is made available to the public. For this purpose, the Riparian Parties shall ensure that the following information is made available to the public:

(a) Water-quality objectives;

(b) Permits issued and the conditions required to be met;

(c) Results of water and effluent sampling carried out for the purposes of monitoring and assessment, as well as results of checking compliance with the water-quality objectives or the permit conditions.

2. The Riparian Parties shall ensure that this information shall be available to the public at all reasonable times for inspection free of charge, and shall provide members of the public with reasonable facilities for obtaining from the Riparian Parties, on payment of reasonable charges, copies of such information.

Part III - Institutional and final provisions

[Omitted: Article 17 - Meeting of Parties, Article 18 - Right to vote, Article 19 - Secretariat]

Article 20 - Annexes

Annexes to this Convention shall constitute an integral part thereof.

[Omitted: Article 21 - Amendments to the Convention, Article 22 - Settlement of disputes, Article 23 - Signature, Article 24 - Depositary, Article 25 - Ratification, acceptance, approval and accession, Article 26 - Entry into force, Article 27 - Withdrawal, Article 28 - Authentic texts]

...

Annex I - Definition of the term "best available technology"

1. The term "best available technology" is taken to mean the latest stage of development of processes, facilities or methods of operation which indicate the practical suitability of a particular measure for limiting discharges, emissions and waste. In determining whether a set of processes, facilities and methods of operation constitute the best available technology in general or specific cases, special consideration is given to:

(a) Comparable processes, facilities or methods of operation which have recently been successfully tried out;

(b) Technological advances and changes in scientific knowledge and understanding;

(c) The economic feasibility of such technology;

(d) Time limits for installation in both new and existing plants;

(e) The nature and volume of the discharges and effluents concerned;

(f) Low- and non-waste technology.

2. It therefore follows that what is "best available technology" for a particular process will change with time in the light of technological advances, economic and social factors, as well as in the light of changes in scientific knowledge and understanding.

Annex II - Guidelines for developing best environmental practices

1. In selecting for individual cases the most appropriate combination of measures which may constitute the best environmental practice, the following graduated range of measures should be considered:

(a) Provision of information and education to the public and to users about the environmental consequences of the choice of particular activities and products, their use and ultimate disposal;

(b) The development and application of codes of good environmental practice which cover all aspects of the product's life;

(c) Labels informing users of environmental risks related to a product, its use and ultimate disposal;

(d) Collection and disposal systems available to the public;

(e) Recycling, recovery and reuse;

(f) Application of economic instruments to activities, products or groups of products;

(g) A system of licensing, which involves a range of restrictions or a ban.

2. In determining what combination of measures constitute best environmental practices, in general or in individual cases, particular consideration should be given to:

(a) The environmental hazard of:

(i) The product;
(ii) The product's production;
(iii) The product's use;
(iv) The product's ultimate disposal;

(b) Substitution by less polluting processes or substances;
(c) Scale of use;
(d) Potential environmental benefit or penalty of substitute materials or activities;
(e) Advances and changes in scientific knowledge and understanding;
(f) Time limits for implementation;
(g) Social and economic implications.

3. It therefore follows that best environmental practices for a particular source will change with time in the light of technological advances, economic and social factors, as well as in the light of changes in scientific knowledge and understanding.

Annex III - Guidelines for developing water-quality objectives and criteria

Water-quality objectives and criteria shall:

(a) Take into account the aim of maintaining and, where necessary, improving the existing water quality;

(b) Aim at the reduction of average pollution loads (in particular hazardous substances) to a certain degree within a certain period of time;

(c) Take into account specific water-quality requirements (raw water for drinking-water purposes, irrigation, etc.)

(d) Take into account specific requirements regarding sensitive and specially protected waters and their environment, e.g. lakes and groundwater resources;

(e) Be based on the application of ecological classification methods and chemical indices for the medium- and long-term review of water-quality maintenance and improvement;

(f) Take into account the degree to which objectives are reached and the additional protective measures, based on emission limits, which may be required in individual cases.

[Omitted: Annex IV - Arbitration]

8. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters [Aarhus, 25 June 1998][10]

The Parties to this Convention,

Recalling principle l of the Stockholm Declaration on the Human Environment,

Recalling also principle 10 of the Rio Declaration on Environment and Development,

Recalling further General Assembly resolutions 37/7 of 28 October 1982 on the World Charter for Nature and 45/94 of 14 December 1990 on the need to ensure a healthy environment for the well-being of individuals,

Recalling the European Charter on Environment and Health adopted at the First European Conference on Environment and Health of the World Health Organization in Frankfurt-am-Main, Germany, on 8 December 1989,

Affirming the need to protect, preserve and improve the state of the environment and to ensure sustainable and environmentally sound development,

Recognizing that adequate protection of the environment is essential to human well-being and the enjoyment of basic human rights, including the right to life itself,

Recognizing also that every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations,

Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights,

Recognizing that, in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns,

...

Have agreed as follows:

Article 1 - Objective

In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.

Article 2 - Definitions

For the purposes of this Convention,

1. "Party" means, unless the text otherwise indicates, a Contracting Party to this Convention;

2. "Public authority" means:

(a) Government at national, regional and other level;

(b) Natural or legal persons performing public administrative functions under national law, including specific duties, activities or services in relation to the environment;

(c) Any other natural or legal persons having public responsibilities or functions, or providing public services, in relation to the environment, under the control of a body or person falling within subparagraphs (a) or (b) above;

(d) The institutions of any regional economic integration organization referred to in article 17 which is a Party to this Convention.

This definition does not include bodies or institutions acting in a judicial or legislative capacity;

3. "Environmental information" means any information in written, visual, aural, electronic or any other material form on:

(a) The state of elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites, biological diversity and its components, including genetically modified organisms, and the interaction among these elements;

(b) Factors, such as substances, energy, noise and radiation, and activities or measures, including administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment within the scope of subparagraph (a) above, and cost-benefit and other economic analyses and assumptions used in environmental decision-making;

(c) The state of human health and safety, conditions of human life, cultural sites and built structures, inasmuch as they are or may be affected by the state of the elements of the environment or, through these elements, by the factors, activities or measures referred to in subparagraph (b) above;

4. "The public" means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups;

5. "The public concerned" means the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.

Article 3 - General provisions

1. Each Party shall take the necessary legislative, regulatory and other measures, including measures to achieve compatibility between the provisions implementing the information, public participation and access-to-justice provisions in this Convention, as well as proper enforcement measures, to establish and maintain a clear, transparent and consistent framework to implement the provisions of this Convention.

2. Each Party shall endeavour to ensure that officials and authorities assist and provide guidance to the public in seeking access to information, in facilitating participation in decision-making and in seeking access to justice in environmental matters.

3. Each Party shall promote environmental education and environmental awareness among the public, especially on how to obtain access to information, to participate in decision-making and to obtain access to justice in environmental matters.

4. Each Party shall provide for appropriate recognition of and support to associations, organizations or groups promoting environmental protection and ensure that its national legal system is consistent with this obligation.

5. The provisions of this Convention shall not affect the right of a Party to maintain or introduce measures providing for broader access to information, more extensive public participation in decision-making and wider access to justice in environmental matters than required by this Convention.

6. This Convention shall not require any derogation from existing rights of access to information, public participation in decision-making and access to justice in environmental matters.

7. Each Party shall promote the application of the principles of this Convention in international environmental decision-making processes and within the framework of international organizations in matters relating to the environment.

8. Each Party shall ensure that persons exercising their rights in conformity with the provisions of this Convention shall not be penalized, persecuted or harassed in any way for their involvement. This provision shall not affect the powers of national courts to award reasonable costs in judicial proceedings.

9. Within the scope of the relevant provisions of this Convention, the public shall have access to information, have the possibility to participate in decision-making and have access to justice in environmental matters without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities.

Article 4 - Access to environmental information

1. Each Party shall ensure that, subject to the following paragraphs of this article, public authorities, in response to a request for environmental information, make such information available to the public, within the framework of national legislation, including, where requested and subject to subparagraph (b) below, copies of the actual documentation containing or comprising such information:

(a) Without an interest having to be stated;
(b) In the form requested unless:

(i) It is reasonable for the public authority to make it available in another form, in which case reasons shall be given for making it available in that form; or

(ii) The information is already publicly available in another form.

2. The environmental information referred to in paragraph 1 above shall be made available as soon as possible and at the latest within one month after the request has been submitted, unless the volume and the complexity of the information justify an extension of this period up to two months after the request. The applicant shall be informed of any extension and of the reasons justifying it.

3. A request for environmental information may be refused if:

(a) The public authority to which the request is addressed does not hold the environmental information requested;

(b) The request is manifestly unreasonable or formulated in too general a manner; or

(c) The request concerns material in the course of completion or concerns internal communications of public authorities where such an exemption is provided for in national law or customary practice, taking into account the public interest served by disclosure.

4. A request for environmental information may be refused if the disclosure would adversely affect::

(a) The confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law;

(b) International relations, national defence or public security;

(c) The course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature;

(d) The confidentiality of commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest. Within this framework, information on emissions which is relevant for the protection of the environment shall be disclosed;

(e) Intellectual property rights;

(f) The confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for in national law;

(g) The interests of a third party which has supplied the information requested without that party being under or capable of being put under a legal obligation to do so, and where that party does not consent to the release of the material; or

(h) The environment to which the information relates, such as the breeding sites of rare species.

The aforementioned grounds for refusal shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment.

5. Where a public authority does not hold the environmental information requested, this public authority shall, as promptly as possible, inform the applicant of the public authority to which it believes it is possible to apply for the information requested or transfer the request to that authority and inform the applicant accordingly.

6. Each Party shall ensure that, if information exempted from disclosure under paragraphs 3(c) and 4 above can be separated out without prejudice to the confidentiality of the information exempted, public authorities make available the remainder of the environmental information that has been requested.

7. A refusal of a request shall be in writing if the request was in writing or the applicant so requests. A refusal shall state the reasons for the refusal and give information on access to the review procedure provided for in accordance with article 9. The refusal shall be made as soon as possible and at the latest within one month, unless the complexity of the information justifies an extension of this period up to two months after the request. The applicant shall be informed of any extension and of the reasons justifying it.

8. Each Party may allow its public authorities to make a charge for supplying information, but such charge shall not exceed a reasonable amount. Public authorities intending to make such a charge for supplying information shall make available to applicants a schedule of charges which may be levied, indicating the circumstances in which they may be levied or waived and when the supply of information is conditional on the advance payment of such a charge.

[Omitted: Article 5 - Collection and dissemination of environmental information]

Article 6 - Public participation in decisions on specific activities

1. Each Party:

(a) Shall apply the provisions of this article with respect to decisions on whether to permit proposed activities listed in annex I;

(b) Shall, in accordance with its national law, also apply the provisions of this article to decisions on proposed activities not listed in annex I which may have a significant effect on the environment. To this end, Parties shall determine whether such a proposed activity is subject to these provisions; and

(c) May decide, on a case-by-case basis if so provided under national law, not to apply the provisions of this article to proposed activities serving national defence purposes, if that Party deems that such application would have an adverse effect on these purposes.

2. The public concerned shall be informed, either by public notice or individually as appropriate, early in an environmental decision-making procedure, and in an adequate, timely and effective manner, inter alia, of:

(a) The proposed activity and the application on which a decision will be taken;

(b) The nature of possible decisions or the draft decision;

(c) The public authority responsible for making the decision;

(d) The envisaged procedure, including, as and when this information can be provided:

(i) The commencement of the procedure;

(ii) The opportunities for the public to participate;

(iii) The time and venue of any envisaged public hearing;

(iv) An indication of the public authority from which relevant information can be obtained and where the relevant information has been deposited for examination by the public;

(v) An indication of the relevant public authority or any other official body to which comments or questions can be submitted and of the time schedule for transmittal of comments or questions; and

(vi) An indication of what environmental information relevant to the proposed activity is available; and

(e) The fact that the activity is subject to a national or transboundary environmental impact assessment procedure.

3. The public participation procedures shall include reasonable time-frames for the different phases, allowing sufficient time for informing the public in accordance with paragraph 2 above and for the public to prepare and participate effectively during the environmental decision-making.

4. Each Party shall provide for early public participation, when all options are open and effective public participation can take place.

5. Each Party should, where appropriate, encourage prospective applicants to identify the public concerned, to enter into discussions, and to provide information regarding the objectives of their application before applying for a permit.

6. Each Party shall require the competent public authorities to give the public concerned access for examination, upon request where so required under national law, free of charge and as soon as it becomes available, to all information relevant to the decision-making referred to in this article that is available at the time of the public participation procedure, without prejudice to the right of Parties to refuse to disclose certain information in accordance with article 4, paragraphs 3 and 4. The relevant information shall include at least, and without prejudice to the provisions of article 4:

(a) A description of the site and the physical and technical characteristics of the proposed activity, including an estimate of the expected residues and emissions;

(b) A description of the significant effects of the proposed activity on the environment;

(c) A description of the measures envisaged to prevent and/or reduce the effects, including emissions;

(d) A non-technical summary of the above;

(e) An outline of the main alternatives studied by the applicant; and

(f) In accordance with national legislation, the main reports and advice issued to the public authority at the time when the public concerned shall be informed in accordance with paragraph 2 above.

7. Procedures for public participation shall allow the public to submit, in writing or, as appropriate, at a public hearing or enquiry with the applicant, any comments, information, analyses or opinions that it considers relevant to the proposed activity.

8. Each Party shall ensure that in the decision due account is taken of the outcome of the public participation.

9. Each Party shall ensure that, when the decision has been taken by the public authority, the public is promptly informed of the decision in accordance with the appropriate procedures. Each Party shall make accessible to the public the text of the decision along with the reasons and considerations on which the decision is based.

10. Each Party shall ensure that, when a public authority reconsiders or updates the operating conditions for an activity referred to in paragraph 1, the provisions of paragraphs 2 to 9 of this article are applied mutatis mutandis, and where appropriate.

11. Each Party shall, within the framework of its national law, apply, to the extent feasible and appropriate, provisions of this article to decisions on whether to permit the deliberate release of genetically modified organisms into the environment.

[Omitted: Article 7 - Public participation concerning plans, programmes and policies relating to the environment, Article 8 - Public participation during the preparation of executive regulations and/or generally applicable legally binding normative instruments]

Article 9 - Access to justice

1. Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law.

In the circumstances where a Party provides for such a review by a court of law, it shall ensure that such a person also has access to an expeditious procedure established by law that is free of charge or inexpensive for reconsideration by a public authority or review by an independent and impartial body other than a court of law.

Final decisions under this paragraph 1 shall be binding on the public authority holding the information. Reasons shall be stated in writing, at least where access to information is refused under this paragraph.

2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned

(a) Having a sufficient interest

or, alternatively,

(b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition,

have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.

What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention. To this end, the interest of any non-governmental organization meeting the requirements referred to in article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph (a) above. Such organizations shall also be deemed to have rights capable of being impaired for the purpose of subparagraph (b) above.

The provisions of this paragraph 2 shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.

3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.

5. In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.

[Omitted: Article 10 - Meeting of the Parties, Article 11 - Right to vote, Article 12 - Secretariat, Article 13 - Annexes, Article 14 - Amendments to the Convention, Article 15 - Review of compliance, Article 16 - Settlement of disputes, Article 17 - Signature, Article 18 - Depositary, Article 19 - Ratification, acceptance, approval and accession, Article 20 - Entry into force, Article 21 - Withdrawal, Article 22 - Authentic texts]

...

Annex I - List of activities referred to in article 6, paragraph 1 (a)

...

5. Waste management:

- Installations for the incineration, recovery, chemical treatment or landfill of hazardous waste;

- Installations for the incineration of municipal waste with a capacity exceeding 3 tons per hour;

- Installations for the disposal of non-hazardous waste with a capacity exceeding 50 tons per day;

- Landfills receiving more than 10 tons per day or with a total capacity exceeding 25,000 tons, excluding landfills of inert waste.

...

10. Groundwater abstraction or artificial groundwater recharge schemes where the annual volume of water abstracted or recharged is equivalent to or exceeds 10 million cubic metres.

11. (a) Works for the transfer of water resources between river basins where this transfer aims at preventing possible shortages of water and where the amount of water transferred exceeds 100 million cubic metres/year;

(b) In all other cases, works for the transfer of water resource between river basins where the multiannual average flow of the basin of abstraction exceeds 2,000 million cubic metres/year and where the amount of water transferred exceeds 5 per cent of this flow.

In both cases transfers of piped drinking water are excluded.

...

[Omitted: Annex II - Arbitration]


[7] Reprinted in: Burhenne, Wolfgang E., (ed.), IUCN Environmental Law Centre/FUST Treaty Series - International Environment Law: Multilateral Treaties, Volume V, p. 985:51, Berlin, 1985. Not yet in force. Parties and/or signatories: Negara Brunei Darussalam, Indonesia, Malaysia, Philippines, Singapore, Thailand.
[8] 30 ILM 800 (1991). Entry into force: 10 September 1997. Parties and signatories(s): Albania, Armenia, Austria, Azerbaijan, Belarus (s), Belgium, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Estonia, European Community, Finland, France, Germany, Greece, Hungary, Iceland (s), Ireland, Italy, Kazakhstan, Kyrgystan, Latvia, Liechtenstein, Lithuania, Luxembourg, Netherlands, Norway, Poland, Portugal, Republic of Moldova, Romania, Russian Federation (s), Slovakia, Slovenia, Spain, Sweden, Switzerland, The Former Yugoslav Republic of Macedonia, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America (s), as at 31 July 2004.
[9] 31 ILM 1312 (1992). Entry into force: 6 October 1996. Parties and signatories (s): Albania, Austria, Azerbaijan, Belarus, Belgium, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, European Community, Finland, France, Germany, Greece, Hungary, Italy, Kazakhstan, Latvia, Liechtenstein, Luxembourg, Netherlands, Norway, Poland, Portugal, Republic of Moldova, Romania, Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, Ukraine, United Kingdom of Great Britain and Northern Ireland (s), as at 31 July 2004.
[10] 38 ILM 517 (1999). Entry into force: 30 October 2001. Parties and signatories (s): Albania, Armenia, Austria (s), Azerbaijan, Belarus, Belgium, Bulgaria, Croatia (s), Cyprus, Czech Republic, Denmark, Estonia, European Community (s), Finland (s), France, Georgia, Germany (s), Greece (s), Hungary, Iceland (s), Ireland (s), Italy , Kazakhstan, Kyrgyzstan, Latvia, Liechtenstein (s), Lithuania, Luxembourg (s), Malta, Monaco (s), Netherlands (s), Norway, Poland, Portugal, Republic of Moldova, Romania, Slovenia (s), Spain (s), Sweden (s), Switzerland (s), Tajikistan, The Former Yugoslav Republic of Macedonia, Turkmenistan, Ukraine, United Kingdom of Great Britain and Northern Ireland (s), as at 31 July 2004.

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