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

1
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
List of Acronyms

AMWQC ASEAN Marine Water Quality Criteria

ASEAN Association of South East Asian Nations
ASEP ASEAN Environment Programme
CBD Convention on Biological Diversity
COP Conference of the Parties
CTI Coral Triangle Initiative
CTI RPA Coral Triangle Initiative Regional Plan of Action
EIA Environmental Impact Assessment
GMS Greater Mekong Subregion
HoB Heart of Borneo
IUCN International Union for the Conservation of Nature
MRC Mekong River Commission
NGO Non-Government Organisation
PNPCA Prior Notification, Prior Consultation and Agreement
PRTRs Protocol on Pollutant Release and Transfer Registers
RHAP Regional Haze Action Plan
SEA Strategic Environmental Assessment
UN United Nations
UN ECE United Nations Economic Commission for Europe
UNCED United Nations Conference on Environment and Development
UNEP United Nations Environment Programme
UNFCC 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
3
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.
 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 Environment 10
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 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

5
ASEAN Charter Article 1(9)
6
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

6
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
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.

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
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

Environmental Impact Assessment

Environmental Impact Assessment, as a national instrument, shall be
undertaken for proposed activities that are likely to have a significant

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-rights-
opponents-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
 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 Year of Adoption29 Level of implementation30

Country

Singapore 1972 Policy

Thailand 1975 Legislation
Philippines 1977 Presidential Decree
Malaysia 1987 Order
Viet Nam 1993 Legislation
Indonesia 1997 Legislation
Cambodia 1999 Sub-Decree
Laos PDR 1999 Legislation
Brunei 2012 Decree
Myanmar 2014 Procedures still to be made

24
Principle 17 of the Rio Declaration on Environment and Development, 1992.
25
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.

9
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. Reliance on participatory approaches;32

2. Application of the precautionary principle;33
3. Application of the principle of intergenerational equity;34
4. 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

Application of the Precautionary Principle

Where there are threats of serious or irreversible environmental damage, lack of
31
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.

10
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. Careful evaluation to avoid – as a priority and wherever practicable –
serious or irreversible damage to the environment; and
2. 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

39
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/intergovernmental-
agreement
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.

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 bi-
lateral 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.

43
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

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 Decision-

Making 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
53
SEA Protocol, Article 10.
54
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

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

59
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.

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
a model for cooperation on transboundary issues. The ASEAN Haze Agreement

62
As of 1 September 2014, Indonesia had not ratified the ASEAN Haze Agreement
63
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.

16
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:
 Sixteen parameters for aquatic life protection (ammonia, cadmium,
hexavalent chromium, copper, lead, mercury, cyanide, total phenol,
68
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”.

17
 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 inter-
connected 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.

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;
69
AMWQMG Manual, p3
70
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
73
wwf.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.

18
  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
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.
75
Koh, Vol II, p.569
76
Fourth ASEAN State of the Environment Report, 2009, p.49.

19
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:

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

77
Preamble, Mekong Agreement.
78
Chapter IV

20
 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

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.

79
The Mekong Agreement, Chapter 2
80
Only One Mekong, p.961.
81
PNPCA, Article 3.
82
See PNPCA, Art 5.5
83
PNPCA, Art 6.
84
PNPCA, Article 5.3.3

21
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

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

85
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)
89
King, p.2

22
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 self-contained
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
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
90
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.

23
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].
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.

93
Articles 28-30.
94
Article 22.
95
Article 23.
96
Article 25.
97
Birnie et al, 2009, 580.

24
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.
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

25
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
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.

26