PROTOCOL ON ENVIRONMENTAL IMPACT ASSESSMENT IN A TRANSBOUNDARY CONTEXT TO THE FRAMEWORK CONVENTION FOR THE PROTECTION OF THE MARINE ENVIRONMENT OF THE CASPIAN SEA
Source: http://www.tehranconvention.org/IMG/pdf/PROTOCOL_ON_ENVIRONMENTAL_IMPACT...
Preamble
The Caspian Littoral States:
Republic of Azerbaijan,
Islamic Republic of Iran,
Republic of Kazakhstan,
Russian Federation,
Turkmenistan,
hereinafter referred to as the Contracting Parties,
Being the Parties to the Framework Convention for the Protection of the Marine Environment of the Caspian Sea, done at Tehran, Islamic Republic of Iran, on 4 November 2003 hereinafter referred to as the Convention;
Reaffirming their determination to implement the provisions of Articles 7, 17 and 18 of the Convention;
Determined to enhance regional understanding and cooperation between the Contracting Parties in protecting the marine environment of the Caspian Sea;
Recognizing that the application of environmental impact assessment at an early stage in the decision-making process for proposed activities promotes the implementation of the principles of sustainable development;
Noting the importance of access to information and public participation in decision-making in environmental matters;
Have agreed as follows:
Article 1. Use of Terms
For the purposes of this Protocol,
(a) “Party of Origin” means the Contracting Party(ies) to this Protocol under jurisdiction of which the proposed activity listed in the Annex 1 to this Protocol is planned to be implemented;
(b) “Affected Party” means the Contracting Party(ies) to this Protocol likely to be affected by the transboundary impact of a proposed activity. The marine area within which the Contracting Party(ies) can be considered as Affected Party will be determined in accordance with the provisions of the convention on the legal status of the Caspian Sea after its entry into force for all Contracting Parties;
(c) “Concerned Parties” means the Party of Origin and the Affected Party of environmental impact assessment procedure pursuant to this Protocol;
(d) “Environmental impact assessment” means a national procedure for evaluating the likely impact of a proposed activity on the environment;
(e) “Proposed activity” means any activity or any major change to an activity subject to a decision of a competent authority in accordance with an applicable national environmental impact assessment procedure;
(f) “Impact” means any effect caused by implementation of a proposed activity on the marine environment of the Caspian Sea including flora, fauna, soil, atmospheric air, water, climate, landscape, historical monuments and/or interaction among those factors; also includes effects on human health and safety, cultural heritage, socio-economic or other conditions resulting from alterations to those factors;
(g) “Transboundary impact” means any impact caused by implementation of proposed activity by the Party of Origin to another Contracting Party;
(h) “The public” means one or more natural or legal persons;
(i) “Competent authority” means the authority(ies) designated by a Contracting Party as responsible for performing tasks covered by this Protocol;
(j) “Point of contact for notification” means the contact point or points of a Contracting Party that each Contracting Party has identified and informed the other Contracting Parties and the Secretariat of, that are responsible for receiving Notification and ensuring the relevant competent authority is notified;
(k) “Project Proponent” means initiator, including public authority, which applies for authorization for a proposed activity according to the national procedure;
(l) “Conference of the Parties” means the body referred to in Article 22 of the Convention;
(m) “Secretariat” means the body referred to in Article 23 of the Convention.
Article 2. Objective
The objective of this Protocol is to implement effective and transparent environmental impact assessment procedures in a transboundary context to any proposed activity which is likely to cause significant transboundary impact on the marine environment and land affected by proximity to the sea in order to prevent, reduce and control pollution of the marine environment and land affected by proximity to the sea, promote conservation of its biodiversity, and rational use of its natural resources, and protect human health.
Article 3. Scope of Application
In accordance with Article 3 of the Convention this Protocol shall be applied to the marine environment of the Caspian Sea taking into account its water level fluctuations and pollution from land-based sources.
Article 4. General Provisions
1. Each Contracting Party shall adopt necessary legal, administrative or other measures to implement the provisions of this Protocol with respect to proposed activities listed in Annex I, that are likely to cause significant transboundary impact as determined in accordance with the criteria set forth in Annex II to this Protocol, the establishment of an environmental impact assessment procedure that permits public participation and preparation of the environmental impact assessment documentation described in Annex III to this Protocol.
2. Each Contracting Party shall ensure that the proposed activities listed in Annex I to this Protocol, that are likely to cause a significant transboundary impact are subject to an environmental impact assessment procedure pursuant to this Protocol prior to a decision to authorize or undertake a proposed activity.
3. Each Contracting Party shall inform the Contracting Parties and the Secretariat of its Point of Contact for Notification. Information on the Points of Contact for Notification shall be made available to the Contracting Parties by the Secretariat, electronically or as otherwise appropriate.
4. Concerned Parties shall ensure effective public participation in the environmental impact assessment procedure of a proposed activity pursuant to this Protocol, commencing at early stage of environmental impact assessment procedures.
5. Pursuant to this Protocol the Concerned Parties shall ensure an equivalent opportunity to the public of the Party of Origin and the public of the Affected Party to participate in the environmental impact assessment procedures of a proposed activity, and shall provide the public with assistance and advice thereof.
6. The provisions of this Protocol shall not affect the right of Contracting Parties to implement national laws, regulations or administrative provisions in the interests of national security.
7. The provisions of this Protocol shall not affect the right of Contracting Parties to maintain or introduce additional measures in relation to issues covered by this Protocol.
8. The provisions of this Protocol shall not prejudice any obligations of the Contracting Parties under international law regarding environmental impact assessment in a transboundary context.
Article 5. Notification
1. For a proposed activity listed in Annex I to this Protocol, the Competent authority of the Party of Origin shall notify as early as possible after being informed of the proposed activity that is likely to cause a significant transboundary impact through the Point of Contact for Notification any Contracting Party which it considers may be a potentially Affected Party and the Secretariat to inform the other Contracting Parties.
2. The notification shall contain, inter alia:
a) Information on the proposed activity, including any available information at the time of notification on its possible transboundary impacts and the characteristics of possible decisions on the proposed activity;
b) A reasonable time-frame which should not be less than 30 days from receipt of notification in English and Russian as provided in article 5 paragraph 3 of this Protocol, for the submission of the Affected Party’s response to the notification;
c) Information regarding the envisaged environmental impact assessment procedure, including an indication of the time schedule for the further steps in the environmental impact assessment procedure, in particular those steps as referred to in Articles 6, 7 and 8 of this Protocol.
3. The Party of Origin shall provide the notification documents in State language with translation in English or in Russian language. The Secretariat shall provide the translation of notification documents into English or Russian, as appropriate.
4. The Competent Authority of the Party of Origin shall ensure the receipt of notification by the Point of Contact for Notification of the Affected Party and the Secretariat.
5. The Competent Authority of the Affected Party shall respond to the Competent Authority of the Party of Origin, and inform the Secretariat, within the time specified in notification, indicating whether it intends to participate in the environmental impact assessment procedure of the proposed activity.
6. If the Affected Party indicates that it does not intend to participate in the environmental impact assessment procedure of the proposed activity, or if it does not respond within the time specified in the notification, the provisions in paragraphs 7 and 8 of this Article, and Articles 6 to 11 of this Protocol, excluding the obligation of the Party of Origin to send the draft environmental impact assessment documentation to the Secretariat pursuant to Article 7, paragraph 3 (b), of this Protocol, shall not apply.
7. If the Affected Party indicates that it intends to participate in the environmental impact assessment procedure of the proposed activity, the Affected Party shall provide in its response to the notification or promptly after to the Party of Origin:
a) Relevant information on the public consultation procedure in the Affected Party;
b) Request, if any, for particular issues to be addressed in the environmental impact assessment investigations;
c) A summary of readily available information on the issues raised in sub-paragraph (b). 8. At the request of the Party of Origin, the Affected Party shall provide any reasonably obtainable information relating to the potentially affected environment, if such information is necessary for the preparation of the environmental impact assessment documentation.
9. When a Contracting Party has reasonable concerns that it would be affected by a significant transboundary impact of a proposed activity and when no notification has taken place in accordance with paragraph 1 of this Article, the Party of Origin shall, at the request of that Contracting Party, provide it with sufficient information whether a significant transboundary impact will take place as a result of the proposed activity. If necessary, these Parties shall hold consultations regarding possible participation in the environmental impact assessment procedure.
Article 6. Communication between Concerned Parties
1. Competent Authorities of Concerned Parties shall consult and agree upon:
(a) The required format and language(s) of environmental impact assessment documentation, including any information, to be submitted for the purposes of public consultations and review by Competent Authority of Affected Party;
(b) Detailed arrangements for communication between Concerned Parties including the roles of the Competent Authorities of the Concerned Parties and the Project Proponent;
(c) Time-frame for review by the Affected Party of the environmental impact assessment documentation which shall not exceed 90 days.
2. Concerned Parties may agree, as appropriate, on means of interaction for undertaking tasks under this Protocol.
Article 7. Preparation and Transmittal of Draft Environmental Impact Assessment Documentation
1. Environmental impact assessment investigations shall be carried out pursuant to national law and practice of the Party of Origin and shall address, to the extent possible, any issues raised by the Affected Party, pursuant to Article 5, paragraph 7, of this Protocol.
2. The Party of Origin shall ensure that the Project Proponent prepares a draft of the environmental impact assessment documentation for the purposes of public consultations and review by the competent authority of the Affected Party. The draft environmental impact assessment documentation shall be provided in the format and language(s) as agreed by Concerned Parties, pursuant to Article 6, paragraph 1, of this Protocol, and shall contain, as a minimum, the content of the items referred to in Annex III of this Protocol in addition to information requested by Affected Party pursuant to Article 6, paragraph 1, of this Protocol.
3. The Party of Origin shall transmit the draft environmental impact assessment documentation to the:
(a) Competent Authority of the Affected Party;
(b) Secretariat for making this information available at the request of any Contracting Party. Article 8. Review of environmental impact assessment Documentation and Public Consultations
1. Concerned Parties shall ensure that the public in the areas likely to be affected are informed, as agreed, pursuant to Article 6, paragraph 1, of this Protocol, of:
(a) The proposed activity;
(b) The availability of the draft environmental impact assessment documentation;
(c) The opportunity and procedure for public consultations by using public notice or other appropriate means.
2. Concerned Parties shall ensure that the draft environmental impact assessment documentation, including as appropriate hardcopies, is made available and easily accessible to the public, including in places open for the public, in accordance with national legislation.
3. Concerned Parties shall ensure that the public in the areas likely to be affected is provided with the opportunity to comment upon the proposed activity to the Competent Authorities of the Concerned Parties. Comments shall be transmitted to the Competent Authority of the Party of Origin or as agreed pursuant to Article 6, paragraph 1 (b), of this Protocol.
4. The Competent Authority of the Affected Party shall review and comment upon the draft environmental impact assessment documentation within the time specified by the Party of Origin pursuant to Article 6, paragraph 1 (c), of this Protocol and submit its comments to the Competent Authority of the Party of Origin.
5. The Party of Origin shall ensure that the Project Proponent:
(a) Summarizes and translates, where necessary, the comments received;
(b) Carries out further investigations where required;
(c) Incorporates comments received from the public and the Competent Authorities of the Affected Parties into final environmental impact assessment documentation and explains how the comments were taken into account.
Article 9. Consultations between Concerned Parties
1. Prior to making the final decision on the proposed activity, at the request of the Affected Party, the Party of Origin shall enter into consultations with the Affected Party, concerning, inter alia, measures to reduce potential transboundary impact.
2. The Concerned Parties shall agree, at the commencement of such consultations, on a reasonable time-frame for the duration of the consultation period, while the period of consultations should not exceed 180 days, unless otherwise decided during the consultation period.
Article 10. Final Decision on Implementation of a Proposed Activity
1. The Competent Authority of the Party of Origin shall take the comments received pursuant to Article 8 of this Protocol into account when reviewing the final environmental impact assessment documentation and when making the final decision on the proposed activity.
2. The Competent Authority of the Party of Origin shall provide the Competent Authority of the Affected Party and the Secretariat with the final decision on the proposed activity along with the reasons and considerations on which it was based, including information on how the comments received were taken into account.
3. Concerned Parties shall ensure that information on the final decision on the proposed activity and information on how the comments received were taken into account is made available to those who submitted comments in accordance with Article 8, paragraph 3, of this Protocol.
Article 11. Post project analysis
1. The Concerned Parties at the request of one of the Parties shall determine the expediency of the post project analysis and, in case of such expediency, to what extent it shall be carried out, taking into account the likely significant adverse transboundary impact of the activity for which an environmental impact assessment has been undertaken pursuant to this protocol.
2. Any post project analysis shall be undertaken with a view to achieving objectives as follows:
(a) Monitoring compliance with the conditions as set out in the authorization or approval of the activity and the effectiveness of mitigation measures;
(b) Review of an impact for proper management and in order to cope with uncertainties;
(c) Verification of past predictions in order to transfer experience to future activities of the same type.
3. If, after the post-project analysis, any of the Contracting Parties has reasonable grounds for concluding that there is a significant adverse transboundary impact, or factors have been discovered which may result in such an impact, it shall immediately inform the Party of Origin and the Secretariat. In this case, the Concerned Parties shall immediately consult and if necessary take appropriate measures to eliminate or reduce the impact.
Article 12. Reporting
Each Contracting Party shall submit a report to the Secretariat on the implementation of the provisions of this Protocol, in format and at intervals as determined at the Conference of the Parties.
Article 13. Institutional Provisions
1. For the purposes of this Protocol and in accordance with Article 22, paragraph 10, of the Convention, the Conference of the Parties shall, inter alia:
(a) Keep under review the implementation of this Protocol;
(b) Keep under review the content of this Protocol;
(c) Consider and adopt annexes to this Protocol;
(d) Consider and adopt any amendments to this Protocol or its annexes;
(e) Consider reports submitted by the Secretariat on matters relating to the implementation of this Protocol;
(f) Establish such subsidiary bodies as may be deemed necessary for the implementation of this Protocol;
(g) Seek, where appropriate, the technical and financial services of relevant international bodies and scientific institutions to achieve the objective of this Protocol;
(h) Perform such other functions, as may be required for the implementation of this Protocol.
2. In accordance with Article 23, paragraph 4, of the Convention, the Secretariat shall inter alia:
(a) Make information on Points of Contact for Notification of all Contracting Parties available to the Contracting Parties electronically, or as otherwise appropriate;
(b) Receive and make available electronically, or as otherwise appropriate, information received in the implementation of this Protocol, as provided by a Party of Origin, including:
(i) Notification of the proposed activities in accordance with Article 5, paragraph 3, of this Protocol;
(ii) Environmental impact assessment documentation provided by a Party of Origin in accordance with Article 7, paragraph 3, of this Protocol;
(iii) The final decision on a proposed activity along with the reasons and considerations on which it was based, including information on how the comments received were taken into account in accordance with Article 10, paragraph 2, of this Protocol;
(c) Prepare and transmit reports on matters relating to the implementation of this Protocol;
(d) Consider enquiries by and information from the Contracting Parties and consult with them on matters relating to the implementation of this Protocol;
(e) To the extent possible, promote the exchange of information and cooperation between the Contracting Parties and provide assistance to the Contracting Parties in implementing the provisions of this Protocol;
(f) Arrange, upon request by any Contracting Party, for the provision of technical assistance and advice for the effective implementation of this Protocol;
(g) Cooperate, as appropriate, with relevant regional and international organizations and programs;
(h) Perform such other functions as may be determined by the Conference of the Parties.
Article 14. Funding
1. To achieve the objectives of this Protocol, the Contracting Parties, shall as far as possible ensure that financial resources are available for the formulation and implementation of related programmes, projects and measures. To this end, the Contracting Parties shall:
(a) Commit domestic financial resources envisaged for these purposes;
(b) Promote the mobilization of financial resources from bilateral and multilateral funding sources and mechanisms, including grants and loans;
(c) Explore innovative methods and incentives for mobilizing and channeling resources, including those of foundations, governmental agencies of other countries, international organizations, non-governmental organizations and private sector entities.
2. The Financial Rules of the Convention shall apply mutatis mutandis to this Protocol, unless otherwise decided by the Conference of the Parties.
3. All activities and their implementation covered by this Protocol shall be financed by funds allocated by the Contracting Parties and other sources consistent with national legislation.
Article 15. Settlement of Disputes
Any dispute between the Contracting Parties concerning the application or interpretation of the provisions of this Protocol shall be settled in accordance with Article 30 of the Convention.
Article 16. Adoption and Entry into Force of the Protocol
1. This Protocol shall be adopted by unanimous decision of the Contracting Parties by a Meeting of the Conference of the Parties.
2. This Protocol shall be open for signature only by the Caspian Littoral States, in the city of Tehran from 20th July 2018 to 20th July 2019.
3. This Protocol shall be subject to ratification, acceptance or approval by the Caspian littoral States, and shall be open for accession by any Caspian littoral State, from the date on which the Protocol is closed for signature.
4. Instruments of ratification, acceptance, approval or accession shall be deposited with the Depository of the Convention.
5. This Protocol shall enter into force on the ninetieth day after the date of deposit of the instrument of ratification, acceptance, approval or accession by all Caspian littoral States.
Article 17. Adoption of Amendments and Annexes to the Protocol, and Amendments to the Annexes
Any Contracting Party may propose amendments and annexes to this Protocol, as well as amendments to its annexes. These amendments and annexes shall be adopted by the Contracting Parties and enter into force in accordance with Articles 24, 25 and 34 of the Convention.
Article 18. Effect of the Protocol on National Legislation
The provisions of this Protocol shall not affect the right of Contracting Parties to adopt relevant stricter national measures for the implementation of this Protocol.
Article 19. Relationship with Other International Treaties
Nothing in this Protocol shall prejudice the rights and obligations of the Contracting Parties under other international treaties to which they are parties.
Article 20. Reservation
No reservations may be made to this Protocol.
Article 21. Depository
The Depository of the Protocol is the Depository of the Convention.
Article 22. Authentic Texts
The Azerbaijani, Farsi, Kazakh, Russian, Turkmen and English texts of this Protocol are equally authentic. In case of dispute arising as to the interpretation or application of this Protocol the English text shall be authoritative.
Article 23. Relationship with the Negotiations on the Legal Status of the Caspian Sea
Nothing in this Protocol shall be interpreted as to prejudge the outcome of the negotiation on the final legal status of the Caspian Sea.
In witness whereof the undersigned, being duly authorized, have signed this Protocol.
Done at the city of Moscow on the twentieth day of July of 2018.
