The duty to take appropriate measures to prevent significant transboundary harm and private companies: insights from tra
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The duty to take appropriate measures to prevent significant transboundary harm and private companies: insights from transboundary hydropower projects Alistair Rieu‑Clarke1 Accepted: 10 July 2020 © The Author(s) 2020
Abstract Recognition that hydropower plays a role in fostering sustainable development and helping countries move away from fossil fuels has led to a resurgence of planned projects on transboundary rivers around the world. Whilst these projects offer clear benefits, they are not without their socio-ecological impacts. An added feature of hydropower projects is that they tend to involve a wide range of actors that are responsible for their financing, planning, construction and operation (international and domestic; private and State). This begs the question, if it is ultimately the responsibility of States to ensure that these projects are in accordance with international law obligations, what does that responsibility entail when much of the activity is conducted by private companies? International law has a long tradition of placing States under an obligation to regulate the conduct of non-State activities so as to prevent transboundary harm. However, a closer review of the law relating to transboundary hydropower projects reveals that more could be done to guide States as to the appropriate measures that they might put in place to ensure that any hydropower projects involving private actors are implemented in an equitable and sustainable manner. Keywords Hydropower · Transboundary harm · Human rights · Private companies · Due diligence Abbreviations EIA Environment Impact Assessments ICJ International Court of Justice ILC International Law Commission SDGs Sustainable Development Goals WWF Worldwide Fund for Nature
* Alistair Rieu‑Clarke Alistair.rieu‑[email protected] 1
Law School, Northumbria University, Newcastle, UK
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A. Rieu‑Clarke
1 Introduction Hydropower is increasingly seen as an important contributor to several global targets and commitments, including the United Nations Sustainable Development Goals (SDGs) and the nationally determined contributions of the 2016 Paris Agreement. This has led to the rapid growth of the hydropower sector in recent years. A record-breaking 21.8 gigawatts (GW) of estimated hydropower capacity was put into operation in 2018 (International Hydropower Association 2019). Hydropower is seen as an important alternative to fossil fuels and a key contributor to mitigating the impacts of climate change and fostering sustainable development (Sustainable Energy 2019; cf. WWF & The Nature Conservancy 2018). The potential to develop the hydropower sector further is therefore high. Whilst Africa is highlighted as the continent with the most untapped technical hydropower potential in the world, that potential is high in many other parts of the world (International Hydropower Association 2019). Hoes et al. (2017) estimate that hydropower has the potential to satisfy 33% of annually required energy, whilst hydropower production in 2017 w
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