The requirement for environmental impact assessment in cases of transboundary harm in the jurisprudence of the international court of justice: how far have we come?

Abstract

At the international level, the duty to conduct an environmental impact assessment (EIA) for those projects that may pose a significant threat to the environment is now enshrined in numerous treaties and multilateral agreements. However, these are not always binding, the parties signing them are usually limited, and their provisions are often vague. In this context, the role of judges in substantiating the EIA obligation is particularly important. This paper analyses the rulings issued by the International Court of Justice (ICJ) on EIA to date. These pronouncements have been scarcely progressive and harboured new interpretative doubts on the content of such duty. Greater clarity and incisiveness on the part of the international judges is desirable if EIAs are to prove a truly useful tool in preventing transboundary environmental damage. After briefly reviewing the development and main features of EIA, the work analyses the relevant jurisprudence of the ICJ in order to identify the Court’s recurring errors. Subsequently, in the light of the pressing need for environmental protection caused by the worsening climate crisis, it questions some of the possible causes of the judges’ conservatism and attempts to propose solutions to improve future jurisprudence. Indeed, it is likely that the Court will be called upon to adjudicate on transboundary environmental protection issues with increasing frequency.