An ASEAN Framework Convention on Principles and Practice for Environmental Impact Assessment as a means of promoting and achieving sustainable development goals for ASEAN members countries. Matthew Baird1 and Martin Cosier2 Environmental Counsel, MEIANZ, Certified Environmental Practitioner. Matthew is currently consulting to PACT and the Mekong Partnership on the Environment (MPE) and Vermont Law School. This paper is the result of research conducted for PACT MPE on a regional EIA convention for the ASEAN Region. The views expressed are his own. 2 Environmental law and policy specialist. Project Leader, Myanmar Environmental Governance Project, Vermont Law School. The views expressed are his own 1 List of Acronyms AMWQC ASEAN ASEP CBD COP CTI CTI RPA EIA GMS HoB IUCN MRC NGO PNPCA PRTRs RHAP SEA UN UN ECE UNCED UNEP UNFCC ASEAN Marine Water Quality Criteria Association of South East Asian Nations ASEAN Environment Programme Convention on Biological Diversity Conference of the Parties Coral Triangle Initiative Coral Triangle Initiative Regional Plan of Action Environmental Impact Assessment Greater Mekong Subregion Heart of Borneo International Union for the Conservation of Nature Mekong River Commission Non-Government Organisation Prior Notification, Prior Consultation and Agreement Protocol on Pollutant Release and Transfer Registers Regional Haze Action Plan Strategic Environmental Assessment United Nations United Nations Economic Commission for Europe United Nations Conference on Environment and Development United Nations Environment Programme United Nations Framework Convention on Climate Change 2 Executive Summary The ASEAN Charter commits the ASEAN community to “ensure sustainable development for the benefits of present and future generations and to place the well-being, livelihood and welfare of the peoples at the centre of the ASEAN community building process.” The move towards an ASEAN Economic Community brings specific challenges to ensure the goal of sustainable development can be met. Effective Environmental Impact Assessment, including Strategic Environmental Assessment, is one important tool to achieve this goal. The term “sustainable development” has been used to embody a set of values in which better account is taken of previously un-assessed environmental impacts arising from traditional forms of development. It refers to an environmentally oriented approach towards economic development. The definition found in the Brundtland Report is “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. EIA has developed over the past 40 years to become a major process to achieve sustainable development. The Rio Declaration 1992 specifically refers to the use of EIA, as a national instrument, to be “undertaken for proposed activities that are likely to have a significant adverse impact on the environment.” EIA is recognised a being a key process in estimating and assessing potential impacts on the environment by development projects and activities. The EIA process also identifies the methods and standards for preventing, mitigating and reducing such potential impacts on the environment. One of the features of EIA is that it should be conducted prior to any approval of the project or activity. This Paper examines the existing international legal regime governing EIA, in particular the relevant UN ECE agreements covering transboundary EIA, Strategic EIA and access to information. The paper also summarises existing ASEAN efforts to address certain environmental management activities that are likely to have a transboundary impact, such as pollution, haze, trade in endangered species, and natural disasters. Some attempts have been made to incorporate transboundary EIA into the Mekong River Agreement but not in the broader ASEAN community. A regional EIA agreement that can focus on the principles, practices and procedures that underpin appropriate assessment of environmental and social impacts of development may offer many benefits for ASEAN, especially in the context of the development of the ASEAN Economic Community. One clear benefit would be the ability for project proponents to be able to apply a consistent standard, and possibly consistent technology across the region. Another would be to enable EIA experts to be able to use ASEAN EIA standards rather than adopt standards from other countries or IFC standards. 3 The Paper observes that traditional approaches to international treaties on environment and resource management issues, whether bilaterial or multilateral, tend to be sectorally focused and self-contained agreements. However, as environmental regulation has increasingly sought to tackle issues involving complex and uncertain science and/or sensitive political negotiations, framework conventions have emerged as a more common, contemporary model for environment treaties. An agreement of core principles can then lead to a flexible process to develop further institutions and harmonize law and policy. An initial Framework Agreement could establish the key principles and procedures for EIA in the ASEAN Region. Under a Framework Agreement, further procedures can be negotiated over time. These could include specific guidelines for the scoping of projects that would require an EIA, minimum standards for public participation processes, and minimum qualifications for the registration of EIA experts. This could extend to the development of ASEAN environmental quality standards and guidelines to assist project proponents, as well as specific procedures for EIAs addressing projects with direct transboundary impacts. Such an approach would recognise the value of establishing a platform of harmonized domestic EIA arrangements that draws on best-practice principles, from which further efforts can be undertaken to pursue enhanced regional arrangements. Significantly, this approach would also allow for ASEAN Member States to begin contemplating specific future Protocols to address transboundary issues without making politically sensitive commitments in the overall framework convention. The creation of a Regional EIA Agreement will always rest on the foundations of domestic EIA legislation and procedures. As most ASEAN Member States have adopted EIA legislation or procedures that accord with international environmental law norms there would exist some solid foundations on which to rest. 4 Introduction Environmental Impact Assessment (EIA) has become an accepted tool for helping achieve environmentally sustainable development. While EIA regimes are at various stages within ASEAN, there is no existing ASEAN-wide EIA regime that recognises the region’s shared interests, increasing trade and interdependence, and transboundary nature of many environmental issues. This Paper examines the existing international legal regime governing EIA, in particular the relevant UN ECE agreements covering transboundary EIA, Strategic EIA and access to information. To identify lessons for ASEAN, the paper also summarises existing ASEAN efforts to address certain environmental management activities that are likely to have a transboundary impact, such as pollution, haze, trade in endangered species, and natural disasters. Some attempts have been made to incorporate transboundary EIA into the Mekong River Agreement but not in the broader ASEAN community. The paper then concludes with suggestions for a new ASEAN Framework Agreement on EIA Principles and Procedures. The ASEAN context As we seek more laws and regulations for the ASEAN environmental landscape, it is imperative that we recognize that ASEAN works primarily on the basis of trust and cordiality. As such, laws and regulations that are of a regional nature would certainly have to be guided by the capability and capacity of each ASEAN country. There is no one-size fits all approach in managing the environment and sustainable development in ASEAN. Ultimately, all ASEAN member states share a common but differentiated responsibility in the protection and conservation of Southeast Asia’s special and valuable environmental heritage.3 The ASEAN Charter commits the ASEAN community to “ensure sustainable development for the benefits of present and future generations and to place the well-being, livelihood and welfare of the peoples at the centre of the ASEAN community building process.”4 One of the purposes and principles contained in Article 1 is: To promote sustainable development so as to ensure the protection of the region’s environment, the sustainability of its natural resources, the Ambassador Ong Keng Yong, Former S-G of ASEAN 2009, as cited in ASEAN Environmental Law, Policy and Governance, Selected Documents, Volume 1, Edited Koh Kheng-Lian, 2009, p.vii. 4 Charter of the Associations of Southeast Asian Nations, Singapore 20 November 2007 as cited in ASEAN Environmental Law, Policy and Governance, Selected Documents, Volume 1, Edited Koh Kheng-Lian, p.179. 3 preservation of its natural resources, the preservation of its cultural heritage and the high quality of life of its peoples.5 The purposes of ASEAN also include: To enhance good governance and the rule of law; To create a single market and production base;6 The promotion and protection of human rights and fundamental freedoms7 and; To promote a people-oriented ASEAN.8 Article 2 of the Charter also reaffirms the Principles of ASEAN including, but not limited to, a shared commitment and collective responsibility, non-interference in the internal affairs of ASEAN member States, respect for fundamental freedoms, the promotion and protection of human rights, the promotion of social justice and the upholding of the UN Charter and international law.9 Environmental protection and sustainable development have been a feature of ASEAN since its early days. The Manila Declaration on the ASEAN Environment10 of 1981 by the ASEAN Environment Ministers reaffirmed the commitment to sustainable development and the need to encourage the enactment and enforcement of environmental protection measures in the ASEAN countries. The Declaration also was aimed to ensure, “as far as practicable, that environmental considerations are taken into account in development efforts, both on-going and future”. One of the key priority areas identified was environmental management, including Environmental Impact Assessment (EIA). This Declaration provided that Member Countries should cooperate in the progressive implementation of the ASEAN Environmental Programme (ASEP). The recognition of EIA as a basis for sustainable development in ASEAN was further acknowledged in the Bangkok Declaration on the ASEAN Environment 1984.11 The Bangkok Declaration sought to “strengthen the use of EIA process and extended Cost-Benefit Analysis for minimizing the adverse effects and for ensuring proper consideration of environmental values in all projects and programmes under government that are likely to produce significant environmental impact and its gradual extension to the private sector including industry.”12 ASEAN Charter Article 1(9) Article 1(5) 7 Article 1(7) 8 Article 1(13) 9 Article 2(2). 10 Manila 30 April 1981, Koh p.653 11 Bangkok Declaration of the ASEAN Environment 29 November 1984, Koh, p.657 12 Koh, p.658 5 6 6 ASEAN also negotiated an ASEAN Agreement on the Conservation of Nature and Natural Resources in 1985. It has only been ratified by Thailand, the Philippines and Indonesia and has not yet entered into force.13 The Jakarta Resolution on Sustainable Development 1987, recognised that “the sustainability of development requires that development processes and environmental management be conducted in an integral manner” and further noted that “the integration of environmental considerations into the development process requires that international and regional cooperation be further heightened and intensified”14. The Jakarta Resolution resolved that ASEAN member countries “adopt the principles of sustainable development to guide and to serve as an integrating factor in their common effort.” In the lead up to the 1992 UN Conference on Environment and Development (UNCED) in Rio de Janeiro, the ASEAN Environment Ministers issued the Kuala Lumpur Accord on Environment and Development. The Accord reaffirmed ASEAN’s commitment to the pursuit of sustainable development. The ASEAN Ministers for the Environment looked in particular at the need for the harmonization of environmental quality standards and the harmonization of transboundary pollution prevention and abatement practices.15 These commitments were further strengthened by the Singapore Resolution on Environment and Development, which included the ASEAN Common Stand on the UNCED.16 Transboundary pollution, including transboundary haze pollution, has remained a key priority for ASEAN, as has been the need to work together for the harmonization environmental policies, legislation, regulations and standards. 17 Sustainable Development Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.18 In December 1989, the United Nations General Assembly set the agenda for UNCED. UNCED was held in Rio de Janeiro (Brazil) from 3 to 14 June 1992 and was attended by 178 States, more than 50 intergovernmental organizations and several hundred non-governmental organizations (NGOs). The European Union 13 Environmental Law Dimensions of Human Rights, Edited by B. Boer, Oxford University Press (2015) p. 138. 14 Koh, p.663 15 Kuala Lumpur Accord on Environment and Development, Koh, p.668 16 Singapore Resolution on Environment and Development, 18 February 1992, Koh, p.671. 17 Yangon Resolution on Sustainable Development, 18 December 2003, Koh p.691. Cebu Resolution on Sustainable Development, 10 November 2006, Koh, p.695 18 Our Common Future, World Commission on Environment and Development, 1987, Oxford University Press. 7 also attended the Conference. In addition to the signing by more than 150 States of the United Nations Framework Convention on Climate Change and the Convention on Biological Diversity, the Conference adopted three non-binding instruments: the Rio Declaration, the UNCED Forest Principles, and Agenda 21. Since 1992, the Rio Declaration has become a power instrument in the promotion of sustainable development and the use of EIA in achieving that goal. The term “sustainable development” has been used to embody a set of values in which better account is taken of previously un-assessed environmental impacts arising from traditional forms of development. It refers to an environmentally oriented approach towards economic development. The definition found in the Brundtland Report is “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. Human Rights and the Environment In the last two decades, the relationship of human rights and the environment has received much attention. Some fundamental aspects of that relationship are now firmly established, but many issues are still not well understood. Clarification of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment is necessary in order for States and others to better understand what those obligations require and ensure that they are fully met, at every level from the local to the global .19 As observed by Professor Ben Boer and Alan Boyle,20 the final document of the Rio+20 Summit reaffirmed respect for all human rights, particularly the rights to health, food and safe drinking water.21 The mandate of the UN Expert on Human Rights and the Environment makes reference to a “safe, clean, healthy and sustainable environment”,22 while the 2012 ASEAN Human Rights Declaration includes a provision on “protection and sustainability of the environment”.23 19 J. Knox, Report of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, A/HRC/22/43 20 Ben Boer and Alan Boyle, “Human Rights and the Environment” 13th Informal ASEM Seminar on Human Rights Background Paper, 2013. P.7 21 The Outcomes Document of Rio+20 The Future We Want can be found at http://www.uncsd2012.org/content/documents/774futurewewant_english.pdf. Rio+20 was the first time that the right to safe drinking water and sanitation was reaffirmed by states at a major UN meeting; see para 8. However, human rights groups like Amnesty International, Human Rights Watch and the Centre of International Environmental Law have pointed out that Rio+20 fell short of fully integrating human rights and environmental protection. http://www.amnesty.org/en/news/rio20-outcome-document-undermined-human-rightsopponents-2012-06-22 22 Ibid., paras. 245-251 23 UNHRC resolution 19/L.8/Rev.1, Human Rights and the Environment, 20 March 2012 8 Environmental Impact Assessment Environmental Impact Assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.24 EIA has developed over the past 40 years to become a major process to help achieve sustainable development. The Rio Declaration 1992 specifically refers to the use of EIA, as a national instrument, to be “undertaken for proposed activities that are likely to have a significant adverse impact on the environment.”25 EIA is recognised a being a key process in estimating and assessing potential impacts on the environment26 by development projects and activities. The EIA process also identifies the methods and standards for preventing, mitigating and reducing such potential impacts on the environment. One of the features of EIA is that it should be conducted prior to any approval of the project or activity. Since the introduction of the National Environmental Policy Act in the United States of America in 1969, EIA has been established in more than 100 countries throughout the world.27 The earliest ASEAN adoptions of the environmental assessment of projects included Singapore in 1972, Thailand in 1975 and the Philippines in 1977.28 ASEAN Member Country Year of Adoption29 Level of implementation30 Singapore Thailand Philippines Malaysia Viet Nam Indonesia Cambodia Laos PDR Brunei 1972 1975 1977 1987 1993 1997 1999 1999 2012 Policy Legislation Presidential Decree Order Legislation Legislation Sub-Decree Legislation Decree Principle 17 of the Rio Declaration on Environment and Development, 1992. Rio Declaration 1992, Principle 17. 26 Environment includes socio-economic, bio-geophysical, health impacts and cultural. 27 Environmental Impact Assessment in Practice, Nick Harvey and Beverley Clarke, Oxford University Press, 2012, p.11. 28 Harvey and Clarke, p.10. 29 Jian Ke and Qi Gao, Only One Mekong, Developing Transboundary EIA procedures for the Mekong Basin, PACE Environmental Law Review 30(3):930-1004, Summer, 2013, p 957. 30 Many of these have now changed. The table only reflects the introduction of EIA into the domestic context. 24 25 9 Myanmar 2014 Procedures still to be made Key Principles of EIA Effective environmental assessment is achieved through the adoption and application of key principles. These include: Legally established, clear and transparent process; Proponent bears the cost of the application and assessment process; Public participation at all stage of the process; Access to information by civil society and the government; Best available scientific information; Clear, evidence-based decision-making; Effective monitoring, compliance and enforcement.31 To achieve the over-arching goal of sustainable development, EIA should use in the assessment process some key assessment mechanisms. These mechanisms reflect current norms on international environmental law. Many of these mechanisms are included within the Rio Declaration 1992. Over the past 20+ years they have become key features of sustainable development. The five primary mechanisms are: 1. 2. 3. 4. Reliance on participatory approaches;32 Application of the precautionary principle;33 Application of the principle of intergenerational equity;34 Conservation of biological diversity and ecological integrity is a primary consideration;35 5. Improved valuation, pricing and incentives.36 Reliance on participatory approaches A central feature for EIA is to maximise the opportunity for participation by all stakeholders. Stakeholders include other government departments, NGOs, civil society, the general community, whether directly or indirectly affected, indigenous communities and the corporate sector. Best-practice EIA will provide for public participation at all stages of the assessment process, from scoping to determination, and will provide community participation in the compliance and monitoring phase of the development. Best-practice EIA will also provide for specific participation strategies for women37 and indigenous people and their communities.38 M Baird, Key Principles and Concepts of Environmental Impact Assessment and Public Participation, Presentation at EIA Workshop, Mondulkiri, Cambodia, July 2014. 32 Rio Declaration 1992, Principle 10 33 Rio Declaration 1992, Principle 15 34 Rio Declaration 1992, Principle 3 35 Rio Declaration 1992, Principle 4 36 Rio Declaration 1992, Principle 8, Principle 12, Principle 13, Principle 16. 37 Rio Declaration, Principle 20. 38 Rio Declaration, Principle 22. 31 10 Application of the Precautionary Principle Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by: 1. 2. Careful evaluation to avoid – as a priority and wherever practicable – serious or irreversible damage to the environment; and An assessment of the risk-weighted consequences of various options.39 Intergenerational equity The principle provides that the present generation should ensure that the health, diversity and productivity of the environment is maintained or enhanced for the benefit of future generations. This requires consideration of the impact of a proposed activity or project taking into account any long-term impact. This could also require consideration of project closure and site-decontamination. Conservation of biological diversity and ecological integrity. The starting point for the assessment of any development proposal is that conservation of biological diversity and ecological integrity should be a fundamental consideration.40 This does not mean that no projects can be approved that will harm the environment. It merely ensures that harm and damage to the environment and society must be justified by the project. The project must evaluate various options and propose ways to avoid or reduce the potential harm. If harm is unavoidable, the project must provide appropriate compensation for the harm. Improved valuation, pricing and incentives. The use of economic tools is integral to effective EIA. Environmental factors should be included in the valuation of assets and services, including eco-system services. This is particularly important to accurately evaluating the costs versus the benefits of projects. Additionally the EIA process should adopt the principle of “polluter pays”.41 This principle is often defined to mean that those who generate pollution and waste should bear the cost of containment, avoidance, or abatement. One other economic measure is that the users of goods and services should pay prices based on the full life cycle costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any wastes.42 Inter-Governmental Agreement on the Environment, signed by the Australian Government and its States and Territories and Local Government, 1 May 1992,www.environment.gov.au/about-us/esd/publications/intergovernmentalagreement 40 See for example the National Environment Policy of Myanmar 1993 that makes environmental protection the primary objective in seeking development. 41 Rio Declaration, Principle 16 42 Rio Declaration, Principle 8, Principle 13, Principle 16. 39 11 International EIA Law Framework Principle 17 of the Rio Declaration was a clear international statement on the importance of EIA (as a national instrument) as a way to assess the potential impacts of those projects that are likely to have a significant impact on the environment. Although most domestic EIA laws rely on the principles outlined in the Rio Declaration to assess local impacts, the matter of assessment of projects with transboundary impacts has often led to conflicts and difficulties. There is no single, unified body of international law governing transboundary EIA.43 The most significant are referred to below. There are also a number of bilateral treaties that seek to deal with transboundary environmental assessment but most are limited to specific resources (usually waters) or areas. The UN Convention on the Protection and Use of Transboundary Watercourses and International Lakes call on member states to pass legislation that will apply EIA to treaty waters.44 The UN Convention on the Law of the Non-Navigational Uses of International Watercourses only provides for notification concerning planned measures with possible adverse effects. Such information may include the results of any environmental impact assessment.45 Whilst there is obligation within this Convention to “protect and preserve the ecosystems of the international watercourses” there is no requirement to conduct transboundary environmental assessment.46 The UN Economic Commission for Europe (UN ECE) has been at the forefront in developing mechanisms that both support and enhance the role of domestic EIA law as well as examining ways that EIA can assist in the transboundary context. The three most internationally recognised instruments relating to environmental assessment are the following: 1 The Convention of Environmental Impact Assessment in a Transboundary Context (Espoo Convention); 2 The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and 3 Protocol on Strategic Environmental Assessment (the SEA Protocol). Each of these international instruments draws from the existing environmental laws norms. Each of these instruments reflects the procedural nature of EIA. Rethinking Transboundary Environmental Impact Assessment, Charles M Kersten, The Yale Journal of International Law, Vol 34:173 at p.178 44 Kersten, p. 180 45 Article 12. Viet Nam is the only ASEAN Member State that is a signatory to this Convention. 46 Article 20 43 12 The Convention of Environmental Impact Assessment in a Transboundary Context (Espoo Convention) As a consequence of the adoption of EIA in most member states in Europe, in 1987 a Group of Experts from the UN Economic Commission for Europe (UN ECE) elaborated on EIA in a transboundary context. The Convention was negotiated from 1988 to 1990 and the Convention was opened for ratification from 3 September 1991.47 It is important to note that the Espoo Convention is a process-oriented convention. Under the Espoo Convention the Parties shall take “all appropriate and effective measures to prevent, reduce and control significant adverse transboundary environmental impact from proposed activities.”48 The obligations under the Espoo Convention extend to an obligation to require project level EIA, notify potentially affected countries, provide access to information to potentially affected parties and to allow comments and be informed on the final decision with respect to the project49. The Espoo Convention provides a list of activities in Appendix I that are covered by the Convention and a minimum list of information that should be included in the EIA in Appendix II. (See Annexure IV). The list of activities is all projects that are likely to have some transboundary impact and are potentially applicable in the ASEAN Context. Protocol on Strategic Environmental Assessment (the SEA Protocol). In addition to the Convention on EIA in a Transboundary Context, the Parties negotiated the SEA Protocol. This SEA Protocol entered into effect on 11 July 2010. The SEA covers the environmental assessment of policies or programmes by member governments which are likely to have significant environmental, including health, effects.50 Under the SEA Convention, Strategic Environmental Assessment is defined to mean: The evaluation of the likely environmental, including health, effects, which comprises the determination of the scope of an environmental report and its preparation, the carrying out of public participation and consultations, and the taking into account of the environmental report and the results of the public participation and consultations in a plan or programme.51 The SEA Convention requires the preparation of a SEA for plans and policies within their jurisdiction. Public participation and consultation are required by the member Parties.52 There is also a requirement for transboundary 47 The Convention entered into force on 10 September 1997. At present there are 44 parties to the Espoo Convention, including the EU, USA and the Russian Federation 48 Espoo Convention, Article 2 49 These are contained in Articles 3 to 6 of the Espoo Convention. 50 SEA Protocol, Article 4. 51 SEA Protocol, Article 2. 52 SEA Protocol, Article 8 13 consultation, if it is likely that the implementation of the plan or policy will have a transboundary impact.53 Convention on Access to Information, Public Participation in DecisionMaking and Access to Justice in Environmental Matters (Aarhus Convention) One of the most important elements of EIA is the need for effective public participation. In order to achieve effective public participation there is a need for the community to have access to the information prepared by the project proponent and by government concerning the project and its potential impact. Principle 10 of the Rio Declaration reflects these fundamental requirements. The Aarhus Convention was concluded as part of the UN ECE “Environment for Europe” process. It entered into force on 30 October 2001.54 It has been recognised as having global significance for the promotion of environmental governance.55 The Aarhus Convention has three mains pillars: 1. The right of the public to access information about the environment and development; 2. The requirement for public participation in certain environmental matters;56 and 3. The rights for the public’s access to courts and tribunals for justice in environmental matters.57 As of 7 January 2014, there were 46 Parties to the Convention, 33 Parties to the Protocol on Pollutant Release and Transfer Registers (PRTRs) and 27 Parties to the amendment on public participation in decisions on the deliberate release into the environment and placing on the market of genetically modified organisms.58 The Preamble of the Convention referred to Principle 1 of the 1972 Stockholm Declaration on the Human Environment and Principle 10 of the 1992 Rio Declaration on Environment and Development. Principle 10 states: Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the SEA Protocol, Article 10. http://www.unece.org/env/pp/welcome.html http://europa.eu.int/comm/environment/aarhus/ . 55 D. Craig and M. Jeffrey, Non-Lawyers and Legal Regimes, in Leary (2010), p. 105. 56 These matters are listed in Annex 1 of the Aarhus Convention. These matters also include any activity not specifically covered in the Annex, where public participation is provided for under an environmental impact assessment procedure in accordance with national legislation. 57 Aarhus Convention, article 4-9. 58 http://www.unece.org/env/pp/ratification.html 53 54 14 opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided. Additionally the United Nations Environment Programme (UNEP) Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters reflect the Aarhus principles at the global level.59 It can be considered that the core principles of the Aarhus Convention reflect a norm of customary international environmental law and are foundation pillars for better environmental governance and the achievement of sustainable development.60 Observations on the UN ECE EIA Framework Within the UN ECE framework the Aarhus Convention, the ESPOO Convention and the SEA Protocol all interact with domestic EIA legislation to create a framework system based on core EIA principles. Without seeking to interfere in the domestic EIA legislation of member states, the framework has sought to ensure that the goal of sustainable development is met. The framework recognises and strengthens the opportunity for the community to participate in the EIA process and for access to information to ensure that such participation is based on evidence and hard data. This is turn strengthens the capacity of government to discharge their domestic obligations efficiently, effectively and in a transparent manner. It would be possible for ASEAN to take these existing treaties and develop them into a regional ASEAN framework, taking into account the need to incorporate ASEAN-oriented principles and circumstances into the framework. This would be the basis for an ASEAN Agreement on EIA that would be beneficial not only on a regional basis but would also provide support for domestic application on international environmental law principles. Such a framework would also be consistent with existing international environmental law principles. It would also allow, at a regional level, the opportunity for governments to adopt SEA. SEA is recognised as making a fundamentally important contribution to sustainable development as a way of increasing “the possibility of analysing and proposing alternatives solutions and incorporating sustainability criteria through the planning process, as they carry the principles of sustainability down from policies to individual projects.”61 http://www.unece.org/fileadmin/DAM//env/pp/welcome.html Chisinau Declaration As adopted on 1 July 2011 60 Craig and Jeffrey, p.123 61 Environmental Impact Assessment in Australia, Theory and Practice, Mandy Elliot and Ian Thomas, 5th Edition. The Federation Press, 2005, p.67. 59 15 Existing ASEAN Agreements and Regional Resources Management Regimes While there is no current ASEAN-wide EIA regime, a number of existing ASEAN agreements and regional resource management regimes provide useful lessons, experience and precedents for the possible development of a new ASEAN EIA Agreement. ASEAN Agreement of Transboundary Haze 2002 (ASEAN Haze Agreement) The ASEAN Agreement on Transboundary Haze Pollution was signed by Governments of the ten ASEAN Member States on 10 June 2002 in Kuala Lumpur, Malaysia and entered into force in November 2003.62 The Agreement was the first regional arrangement in the world that binds a group of contiguous states to tackle transboundary haze pollution resulting from land and forest fires.63 The environmental, economic and social dimensions and impact of such fires in 1997-1998, and the associated transboundary haze pollution, were significant. The total economic losses in terms of agriculture production, destruction of forest lands, health, transportation, tourism, and economic endeavors have been estimated at more than USD9 billion.64 The ASEAN Haze Agreement recognized that transboundary haze pollution which result from land and/or forest fires should be mitigated through concerted national efforts and international cooperation.65 The Agreement comprehensively addresses all aspects of fire and haze including prevention, emphasizing the underlying causes, monitoring, and mitigation. An ASEAN Transboundary Haze Pollution Control Fund was established to implement the Agreement. As events showed in 2013 and 2014, transboundary air pollution from haze has not yet been contained. One of the significant deficiencies within the ASEAN Haze Agreement is that there are no obligations on the parties to prevent or mitigate the causes of the air pollution. Whilst the ASEAN Haze Agreement recognizes that there is an existing international environmental law principle that requires a country to prevent transboundary damage66 the main focus of the ASEAN Haze Agreement was to monitor and provide information to other parties in the event of haze pollution.67 Although it has been suggested that the ASEAN Haze Agreement was not successful in preventing further pollution form haze and burning, it does provide As of 1 September 2014, Indonesia had not ratified the ASEAN Haze Agreement http://environment.asean.org/asean-cooperation-on-transboundary-haze-pollution/ 64 http://environment.asean.org/asean-cooperation-on-transboundary-haze-pollution/ 65 ASEAN Agreement on Transboundary Haze Pollution, Article 3. 66 ASEAN Haze Agreement, Article 3. 67 Article 4, General Obligations. Part II deals with Monitoring, Assessment, Prevention and Response. 62 63 16 a model for cooperation on transboundary issues. The ASEAN Haze Agreement established the ASEAN Coordinating Centre and created monitoring and assessment requirements. Part III of the ASEAN Haze Agreement, also provides for technical cooperation and scientific research. It also created institutional arrangements and established a Secretariat. All these elements could form the basis for regional cooperation on the development of an ASEAN EIA Agreement. Many of the key principles of EIA law are already part of domestic EIA law in ASEAN Countries. To the extent that the ASEAN Haze Agreement required states to act to prevent haze pollution and promote a “zero-burning policy”, it has been less successful. It is likely that the failure to act to prevent burning is due more to local pressures and issues rather than a failure of will at the national level. The prosecution of those responsible for the burning has not had any impact on reducing the haze. So the ASEAN Haze Agreement can be seen to have enabled an increase in cooperation on the monitoring and assessment side, without reducing the substantive problem. ASEAN Marine Water Quality Management Guidelines and Monitoring One other successful environmental management model that has been developed under ASEAN is that ASEAN Marine Water Quality Management Guidelines and Monitoring Manual 2008. Marine and estuarine water quality represents significant environmental issues within countries across the ASEAN region. Recognizing the commonalities of the underpinning problems and solutions, and their management, member states have been making concerted effort to develop a harmonized framework of approach within ASEAN. The Hanoi Plan of Action (1999-2004) (HPA) called for the development of a framework to improve regional coordination for the integrated protection and management of coastal zones, development of a regional action plan for the protection of the marine environment from land-based and sea-based activities, and promote regional coordination to protect Marine Heritage Parks and Reserves.68 The ASEAN Marine Water Quality Criteria (AMWQC) was developed during the period from 1992-1997. Following this development in 2002 ASEAN Environment Ministers endorsed the set of 17 ASEAN Marine Water Quality Criteria at the 7th Informal ASEAN Ministerial Meeting on the Environment on 20 November 2002 in Vientiane, Lao PDR. The 17 parameters were unanimously agreed and adopted as common marine water quality criteria for the protection of the coastal and marine environment in ASEAN. They included: Para 6.12 identifies the need to - “Develop a Regional Action Plan for the Protection of the Marine Environment from Land-based and Sea-based Activities by the year 2004”. This objective was reiterated in the Vientiane Action Programme (VAP) in November 2004 and the Measure identified in 3.3.7. 2 of Annex 3 is to - “Further expand and implement the ASEAN Marine Water Quality Criteria”. 68 17 Sixteen parameters for aquatic life protection (ammonia, cadmium, hexavalent chromium, copper, lead, mercury, cyanide, total phenol, tributyltin, nitrate, phosphate, temperature, dissolved oxygen, oil and grease, and total suspended solids); and One parameter for human health protection (i.e. bacteria) These 17 parameters are known as the AMWQC and set values to guide concerted national level action to protect the shared marine waters of ASEAN.69 Such experience setting common water quality standards also provides a precedent for further developing ASEAN environmental standards as part of an ASEAN EIA Agreement. Heart of Borneo Declaration One other model that has been used in an ASEAN Regional context, though not an ASEAN agreement itself, is the Heart of Borneo (HoB) Declaration and the programmes attached to the Declaration. The Heart of Borneo initiative arose from a WWF programme to protect Borneo, the world's third largest island, with a population of 16 million, and which accounts for just 1% of the world's land yet holds approximately 6% of global biodiversity in its rich, tropical forests.70 The HoB covers approximately 200,000 square kilometers of ecologically interconnected rainforest in the provinces of Kalimantan (Indonesia), the states of Sabah and Sarawak (Malaysia), and Brunei Darussalam. The total approximate area for the HoB is around 30% of the island’s land area.71 In February 2007, the three governments of Borneo - Brunei, Indonesia and Malaysia - demonstrated their commitment to securing a sustainable future for Borneo's highland rainforest by The Heart of Borneo Declaration.72 The Declaration commits the three countries to a common conservation vision to ensure the effective management of forest resources and the creation of a network of protected areas, sustainably-managed forests and land-use zones across the 22 million hectares which constitute the Heart of Borneo - an area which covers almost one third of the whole island.73 The Heart of Borneo Declaration however remains a voluntary agreement for transboundary cooperation to achieve sustainable development for the area.74 There are no principles or definitions to assist in determining what is meant by sustainable development nor any specific action plans within the Declaration. AMWQMG Manual, p3 http://wwf.panda.org/what_we_do/where_we_work/borneo_forests/ 71 Heart of Borneo Strategic Plan of Action, 2008. 72 Koh, Volume II, p.195 73wwf.panda.org/what_we_do/where_we_work/borneo_forests/ about_borneo_forests/declaration.cfm 74 Heart of Borneo Strategic Plan of Action, 2008, p.6. 69 70 18 Following on from the Heart of Borneo Declaration, in 2008, the three governments adopted a Strategic Plan of Action that consisted of five main programs and 21 proposed actions. The programs were: Transboundary management; Protected Areas Management; Sustainable Natural Resources Management; Ecotourism Development; Capacity Building. There is also no mention of EIA, Transboundary EIA or Strategic Environmental Assessment as tools to achieve any of the actions in the Strategic Plan of Action. The Strategic Plan of Action focuses instead on the review of the HoB initiative to be inline with each country’s Constitution and Legislation. Coral Triangle Initiative The Coral Triangle Initiative on Corals Reefs, Fisheries and Food Security (CTI) was launched in 2007 as a multilateral partnership among six counties – Indonesia, Malaysia, Papua New Guinea, Philippines, Solomon Island and Timor Leste. ASEAN has endorsed the initiative.75 The CTI is managed through a Secretariat based in Jakarta. On 15 May 2009, the CTI released its Regional Plan of Action (RPA). This RPA is a non-binding document aimed to conserve and sustainably manage coastal and marine resources within the Coral Triangle Region. It specifically takes into consideration the laws and policies of each member country. The RPA recognised nine guiding principles under CTI process. These include principles that the CTI should: support people-centered biodiversity conservation, sustainable development, poverty reduction and equitable benefit sharing; be based on solid science; use existing and future forums to promote implementation; be aligned with international and regional commitments; recognize the transboundary nature of some important marine natural resources; and be inclusive and engage multiple stakeholders. The CTI provides for an extensive series of programs and commitments. However one deficiency is that the RPA does not refer to EIA or SEA at all. Significant work has been undertaken on the management of the marine areas and the development of marine protected areas. However the absence of a program dealing with the integration of environmental assessment of land or sea based activities on the sustainability of the oceans resources is a major gap. The increasing development of the coastal zone, not only for livelihoods but also for tourism and industry is a growing problem. In addition ship and sea-based 75 Koh, Vol II, p.569 19 activities, including offshore petroleum and gas explorations, have all contributed to threaten the marine environment.76 EIA and SEA provides an opportunity for both project specific and sector-wide assessment of potential impacts on the marine environment. An opportunity to ensure that coastal zone projects carry out appropriate environmental and social impact assessment would fill the gap in the CTI RPA. Mekong River Agreement 1995 The Agreement on Cooperation for the Sustainable Development of the Mekong River Basin was signed in Chiang Mai, Thailand on 5 April 1995 (The Mekong Agreement). The UN had established the Mekong Committee in 1959 but the Mekong Agreement reflected the decision by Cambodia, Lao PDR, Thailand and Viet Nam to establish a regional framework for cooperation along the Mekong Basin. From the outset the Mekong Agreement was focussed on sustainable development, utilization, conservation and management of the Mekong Basin.77 Article 3. Protection of the Environment and Ecological Balance To protect the environment, natural resources, aquatic life and conditions, and ecological balance of the Mekong River Basin from pollution or other harmful effects resulting from any development plans and uses of water and related resources in the Basin. Article 4. Sovereign Equality and Territorial Integrity To cooperate on the basis of sovereign equality and territorial integrity in the utilization and protection of the water resources of the Mekong River Basin. The key to the success (and failures) of the Mekong Agreement has been the need for all parties to Act cooperatively in matters that impinge on the right of each member state to utilize the Mekong River resources. Additionally the Mekong Agreement implicitly recognizes that there are many actions that will have a transboundary impact, not least hydropower but also shipping, irrigation, and fishing. The Mekong Agreement established the Mekong River Commission (MRC) that included the Council, the Joint Committee and the Secretariat.78 Since that time the work of the MRC has expanded to included significant programs to assess and research on activities along the Mekong Basin. The MRC in 2011 adopted the Integrated Water and Related Resources Management-based Basin Development Strategy and its 2011-2015 Strategic Plan. A key feature of the Mekong Agreement from a transboundary EIA perspective is the requirement for prior consultation. Prior consultation is defined in the Mekong Agreement: Fourth ASEAN State of the Environment Report, 2009, p.49. Preamble, Mekong Agreement. 78 Chapter IV 76 77 20 Prior consultation: Timely notification plus additional data and information to the Joint Committee as provided in the Rules for Water Utilization and Inter-Basin Diversion under Article 26, that would allow the other member riparians to discuss and evaluate the impact of the Proposed use upon their uses of water and any other affects, which is the basis for arriving at an agreement. Prior consultation is neither a right to veto the use nor unilateral right to use water by any riparian without taking into account other riparians' rights. 79 It must be recognised that the MRC has, over the past 20 years, contributed greatly to the study of the Mekong River Basin. Many of it projects examine the impact of development and existing uses on the Mekong Basin. Recently the work of the MRC has been dominated by discussion of the expansion of hydropower developments both on the main stream Mekong River and its tributaries. The success (and failure) of the MRC is that it has adopted a cooperative approach based on promoting consensus and cooperation over confrontation. The MRC is also heavily reliant of foreign donors. It has been suggested that this reliance has created a “sense of alienation of the MRC to its member states”.80 Procedures for Notification, Prior Consultation and Agreement One of the key features of the Mekong Agreement, as mentioned above, is the requirement of prior consultation. This was further enhanced by the Procedures for Notification, Prior Consultation and Agreement (PNPCA) that were adopted in 2003 The PNCPA were adopted to promote better understanding and cooperation amongst the MRC member countries. The guiding principles of the PNPCA were: Sovereign equality and territorial integrity; Equitable and reasonable utilization; Respect for rights and legitimate interests; Good faith; Transparency.81 The aim of PNPCA, similar in substance to the notification requirements under the Espoo Convention, was to provide other member countries with prior notification of development that would likely have a transboundary impact. The PNPCA would also allow the impact party an opportunity to consider the information contained in the Notification and to request further information or clarification. The time for Prior Consultation was set at six months with the possibility of extension.82 Approval was to be considered on a case-by-case basis.83 The Mekong Agreement, Chapter 2 Only One Mekong, p.961. 81 PNPCA, Article 3. 82 See PNPCA, Art 5.5 83 PNPCA, Art 6. 79 80 21 There was a role for both the MRC and the MRC Joint Committee to assist in the transmittal process and also to assist with the consultation process.84 The PNPCA process made good use of the exiting institutional arrangements, including the National Mekong Committees established under the Mekong Agreement. The value of the PNPCA process cannot be underestimated, even if it only applies for a limited range of projects and has been the subject of criticism.85 What is clear from the PNPCA and the Mekong Agreement is that member countries have agreed to allow prior notification and prior consultation for activities and projects that may have transboundary impacts. It also recognised that a secretariat body was necessary to assist in the process of notification and consultation. Consideration of Transboundary EIA by the MRC Attempts have been made by the MRC to advance the idea of a transboundary EIA framework. In 1998 the MRC agreed to formulate and adopt a system for environmental assessment in a transboundary context.86 Following a report prepared by Environmental Resources Management in April 2002 guideline report was presented to the MRC.87 The ERM Report consisted of a Background Report and a Proposed System Report (the Proposed System Report). The Proposed System Report noted that the policy documents were “not intended to supersede or replace existing EIA requirements in each country” but were proposed as a complementary framework applicable to those projects that had the potential to cause transboundary impacts.88 The Proposed System Report was broken into three parts: 1. A sub-system for SEA; 2. A Policy of EIA in a Transboundary Context for the MRC; 3. A sub-system for EIA. The Proposed System also had a number of elements: 1. Proposed Policy on EIA in a transboundary context; 2. Guidelines on SEA; 3. Guidelines on Cumulative Impact Assessment; 4. Guidelines on Public Participation in Environmental Assessment; 5. Environmental Impact Statement Review Criteria; 6. Sector Guidelines; 7. Training Program to support the implementation of the EIA/SEA System PNPCA, Article 5.3.3 PNPCA, Article 4. 86 P. King, Transboundary EIA and Climate Change in the Greater Mekong Subregion (GMS), presented at the Stimson Centre Conference, Finding Solution to Equitable Hydropower Development Planning in the Lower Mekong Basin, Chiang Rai, 2014 87 Environmental Resources Management, Development of an EIA/SEA System for the Lower Mekong Basin, April 2002 (ERM Report) 88 Environmental Resources Management, Development of an EIA/SEA System for the Lower Mekong Basin Proposed System, April 2002 (the Proposed System Report) 84 85 22 As King noted, since the presentation of these comprehensive reports to the MRC in 2002 little action has been taken. In 2007 the Thai National Mekong Committee raised a number of concerns with the EIA framework.89 In 2009 the Environmental Law Institute conducted a further review90 and assessed the EIA/SEA Proposed Framework in the context of global best practice and provided a revised draft framework.91 The MRC remained committed to the implementation of a transboundary EIA framework in the 2006-2010 Strategic Plan and the 2011 – 2015 Strategic Plan. Since the 2009 review by the Environmental Law Institute there has been no advancement on the adoption of the Framework. General observations on the MRC Experience It can be observed that the Proposed System, taking into account the comments from the Environmental Law Institute, would have provided a solid approach to EIA for projects that were likely to cause transboundary impacts. It is also clear that despite being best-practice the MRC has not been able to advance the implementation of transboundary EIA or SEA in the Mekong Basin. One conclusion that can be drawn from this experience is that it is necessary to pursue SEA and transboundary EIA at the ASEAN level. Approaching this at a sub-regional level does not provide enough leverage to overcome concerns about the impact that EIA has at a project level. Framework conventions: contemporary models of multilateral environment agreements It can be seen from the examples above that traditional approaches to international treaties on environment and resource management issues, whether bilaterial or multilateral, tend to be sectorally focused and selfcontained agreements. This appears a justifiable approach, particularly for treaties designed to manage shared resources or interests. However, as environmental regulation has increasingly sought to tackle issues involving complex and uncertain science and/or sensitive political negotiations, framework conventions have emerged as a more common, contemporary model for environment treaties. The UN Framework Convention on Climate Change (UNFCCC) is a prime example of a treaty designed to “establish a process for reaching further agreement on policies and specific measures to deal with climate change.”92 A framework King, p.2 Establishing a Transboundary Environmental Impact Assessment Framework for the Mekong River Basin, an Assessment of the Draft Mekong River Commission TbEIA Framework, Environmental Law Institute, April 2009. 91 King, p.1. 92 Patricia Birnie, Alan Boyle, and Catherine Redgwell, International Law and the Environment, Oxford University Press, 2009, 2009, 357. 89 90 23 agreement to address climate change was considered the only viable form of multilateral environment agreement given the global nature of the problem, its intrinsic interconnectedness with various economic and sectoral issues, and significant political disagreements between countries over responsibilities for causing and addressing the problem. The UNFCCC establishes overarching principles and a set of institutional arrangements and mechanisms for developing specific commitments and responses through subsequent Protocols. The framework model was also used in the Convention on Biological Diversity (CBD), given the diverse and complicated issues that were encompassed in early negotiations made settling on a comprehensive treaty with specific obligations difficult. Accordingly, the CBD establishes guiding objectives of conservation, sustainable use and equitable sharing of benefits of biodiversity, while providing mechanisms for the ongoing development of specific commitments in protocols and annexes,93 as well as cooperation with other biodiversity-related treaties.94 The CBD establishes institutional arrangements that provide mechanisms to further develop, and for monitoring the implementation of, the Convention. Central to these institutional arrangements is the Conference of the Parties (COP), which is established as a powerful governance mechanism,95 and a Secretariat to support the Convention’s functioning and implementation. The CBD also establishes a Subsidiary Body for Scientific, Technical and Technological Advice to make recommendations to the COP on scientific and technical issues.96 This committee comprises relevant experts from member governments, as well as observers from non-party governments, the scientific community, and other relevant organizations. Other subsidiary bodies have been established by the COP to deal with specific issues as they arise. The Convention also establishes a financial mechanism for the provision of financial resources to developing country parties to assist them implement their obligations and achieve the CBD’s objectives. Notably, both the CBD and UNFCCC were part of a package of landmark multilateral environment agreements and documents made around the 1992 UN Conference on Environment and Development in Rio de Janeiro, Brazil. As such, the move towards framework conventions has a similar genesis to the widespread international adoption of the concept of sustainable development and key EIA principles contained in the Rio Declaration. The advantages of framework conventions for addressing complex transboundary environment issues has been well summarized by Birnie et al: “the value of a framework convention of this kind is twofold. First, it identifies basic principles on which the parties can agree regardless of the adoption of further agreements covering specific [aspects of the issue]. Articles 28-30. Article 22. 95 Article 23. 96 Article 25. 93 94 24 Second, it provides a flexible basis for the development of institutions and the harmonization of law and policy for each regional [issue].”97 While referring to issues of shared regional watercourses, this assessment is equally applicable to other transboundary issues, including EIAs. For a regional EIA regime to incorporate existing domestic systems with international best practice, while ideally embracing new EIA arrangements to address transboundary projects and impacts, significant political will and negotiations will be necessary among the ASEAN Member States. Agreeing to a framework that is underpinned by basic principles, such as those outlined above, incorporates provisions for the harmonization of domestic systems and provides a structured platform for the further development of the more complex elements of transboundary EIA issues could be an exciting – yet practical – way of ASEAN pursuing sustainable development as part of its regional integration goals. Analysis and Recommendations The creation of a Regional EIA Agreement will always rest on the foundations of domestic EIA legislation and procedures. As most ASEAN Member States have adopted EIA legislation or procedures that accord with international environmental law norms, there exist some solid foundations on which to rest. This paper’s consideration of key examples of regional approaches to resource management and existing ASEAN agreements highlights some useful lessons for the pursuit of a regional EIA framework for ASEAN that recognizes, and seeks to build off, Member States’ domestic regulatory foundations. These lessons apply to the development of such a framework, the form it might take and its content. Most importantly, at the outset, it is clear that the development of any intergovernmental agreement requires strong political will from all parties. This has been an ongoing challenge with the implementation of the Mekong River Agreement and the GMS Environment Agreement. Experience with the ASEAN Agreement on Transboundary Haze clearly highlights the importance of considering issues of implementation, monitoring and enforcement of an ASEAN-wide agreement in the early stages of negotiation and preparation. In the case of a regional EIA framework, this report has highlighted some of the key principles of a best-practice EIA regime and preliminary comments regarding their application. Further consideration should be given to how these principles can be implemented in practice both within and between ASEAN Member States when developing potential models. There are many benefits for drawing together key principles and procedures for EIA as part of the development of the ASEAN Economic Community. One clear benefit would be the ability for project proponents to be able to apply a consistent standard, and possibly consistent technology across the region. 97 Birnie et al, 2009, 580. 25 Another would be to enable EIA experts to be able to use ASEAN EIA standards rather than adopt standards from other countries or IFC standards. It is suggested that an ASEAN Framework Agreement on EIA Principles and Procedures could be pursued based on the key EIA Principles enumerated in the Rio Declaration and as already adopted by Member Countries. The ASEAN Framework Agreement on EIA Principles and Procedures would state clearly the EIA principles and procedures already adopted by Member States. The Framework Agreement could then be enhanced by the development of specific Annexures or Protocols over time. For example, some of the Protocols to be negotiated could include: 1. List of projects and activities requiring an EIA or Initial Environmental Evaluation (IEE); 2. Minimum requirements for access to information in EIA; 3. Procedures for Transboundary EIA, including notification and consultation mechanisms; 4. Procedures for public participation and consultations; 5. Minimum standards and training requirements for EIA consultations, including registration of EIA consultants; 6. Development of Environmental Quality Guidelines and Standards. Some of these Protocols could be negotiated at the same time as the Framework Agreement. Such a Framework Agreement would likely cover 10-20 chapters, including chapters dealing with negotiation and adoptions of further protocols or annexures. The Framework Agreement would identify the key principles and mechanisms for EIA in ASEAN, including Transboundary EIA, Strategic Environmental Assessment, Climate Change integration in EIA. It would also incorporate the key principles of EIA as set out in the Rio Declaration (see Annexure 1). The Framework Agreement would establish a Secretariat, either using an existing body or a new one. This Secretariat would be the facilitator for the future Annexures or Protocols. By recognising key principles of EIA, the Framework Agreement would then become the basis Such an approach would recognise the value of establishing a platform of harmonized domestic EIA arrangements that draws on best-practice principles, from which further efforts can be undertaken to pursue enhanced regional arrangements. Significantly, this approach would also allow for ASEAN Member States to begin contemplating specific future Protocols to address transboundary issues without making politically sensitive commitments in the overall framework convention. Such a Framework Agreement on EIA Practice and Procedure would also help ensure that the development of the ASEAN economic community and free trade area is paralleled by the strengthening of environmental impact assessment laws, including transboundary EIA laws, and that the ASEAN goal of sustainable development is achieved. It would also reinforce two of the central pillars of the 26 ASEAN Economic Community, the economic and social. Reflecting domestic ASEAN EIA laws and international standards it would also reaffirming ASEAN’s longstanding commitment to sustainable development and Green Growth. 27