Transboundary Environmental Governance and the Baia Mare Cyanide Spill

Abstract

AbstractMining gold with the use of cyanide has always been an inherently dangerous activity requiring strict regulatory oversight and the application of appropriate technology to prevent environmental harm. The cyanide spill from the Aurul S.A. gold-mining operation in Baia Mare, Romania, was a warning to the international community that legal and institutional regimes that should prevent and respond to such accidents may as yet not be fully developed, especially in countries in transition. In particular, the international legal regimes for industrial-accident prevention, liability, and foreign direct investment must be considered as a whole in order to identify gaps and weaknesses in the system that should be addressed in the effort to protect human health and the environment from such accidents. In addition, the gap between legal requirements and commitment to, and capacity for, implementation—especially in transition countries—must be addressed.This article addresses the need to bring attention to the international legal implications of the Baia Mare accident. First, the article sets the stage by briefly identifying the positive responses that the accident has evoked from Romanian and international stakeholders, indicating that steps have already been taken to strengthen the institutional and legal framework governing mining operations. Then, the international legal obligations of Romania at the time of the accident are examined, followed by the identification of international conventions to which Romania was not party at the time of the accident and that could have helped prevent the accident. Gaps in the international legal regimes relevant to the accident are also identified and recommendations are made for filling them, including principles of environmental governance for foreign investors in countries in transition. Recommendations are also made for addressing the issue of implementation.The accident at Baia Mare has resulted in a number of positive responses—both domestically in Romania, as well as regionally and at a broader European level—and it is incumbent upon stakeholders to continue to expand the scope of social learning that the accident has made available. Actions taken in Romania after the spill include closer cooperation between local/regional officials and environmental nongovernmental organizations and a generally increased sensitivity among NGOs to the dangers inherent in mining activities. NGOs have now assumed watchdog and public-education roles. Responses at the European level include greater transboundary cooperation in river management and a strong push by the European Union to amend the Seveso II Directive on industrial-accident prevention to cover mining operations.Romania was not party to several key international conventions that could conceivably, if implemented, have prevented or minimized the effects of the accident at Baia Mare or provided for a more effective long-term response. These include the Convention on the Transboundary Effects of Industrial Accidents and the Convention on the Law of the Non-navigational Uses of International Watercourses. In addition to international legal instruments to which Romania was not party, there are also European Union directives that Romania has not yet transposed into domestic law. As a country seeking to join the European Union, transposition of EU legislation is a high priority for Romania. Priority should be given to the Seveso II Directive, which seeks to prevent industrial accidents, and the directive on integrated pollution prevention and control, which requires the use of the best available technology to prevent discharges.Gaps and weaknesses in international law fall into three main categories: industrial-accident prevention, liability for environmental harm, and foreign direct investment.