Where to begin? International law starts "at home."
People are increasingly faced with the effects of environmental pollution and destruction of nature originating not only in their own country, but also in neighboring countries. One of many examples is Bulgaria, which is planning to reroute streams from the Rila Mountains. The effects would be dehydration of large conservation areas, erosion and deforestation. At the same time, the Mesta River that provides natural drainage would receive considerably less water, causing a water shortage in Greece. Another plan is to reroute the river Djerman that flows into the Struma, which also runs into Greece. In both cases, nature and the population of Bulgaria and Greece would feel the consequences. On the border between FYR Montenegro and Albania, the Buna River and Shkodra Lake are seriously polluted by mining activities and discharges of unpurified waste water which affect the quality of water and drinking water, decrease fish stocks and the recreational function of the lake. At the border between Austria and Slovenia in Stirya, the government has plans to build an incinerator. Citizens on the Slovenian side fear transport and storage of all kinds of dangerous (chemical) waste, primarily from Austria itself. In the border regions between Austria, Germany, and the Czech Republic (Temelin and Dukovany), the construction of nuclear plants causes considerable problems and unrest among the citizens on both sides of the border. Between Estonia and Russia, around the Gulf of Finland and Lake Peipsi, serious industrial pollution poses health risks for the population on both sides of the border. The environmental quality of the wetlands is seriously affected, which also results in a decrease of fish stocks. In Slovakia, near the Hungarian border at Gabcikovo, following the withdrawal of the Hungarians from an originally joint project, a dam was built unilaterally on the Slovak side. In addition to interfering with the normal water supply, the dam negatively effects rare animal and plant species on the bordering Hungarian area. In the border regions of Latvia and Lithuania, and of Lithuania and Belarus, more or less the same problems are at stake concerning the Liclupe river, the Nemarus river, and the Daugava river respectively.
These are only a few examples, and more are given in the coming chapters. The list can easily be extended. Many countries show a remarkable tendency towards establishing polluting industries near their borders. And this, as we saw, applies not only to industries or nuclear plants. Other activities can also adversely affect a neighboring country, e.g. canalization of rivers, construction of dams, drainage of areas and construction of airports, harbors and highways. The transboundary consequences can be severe both for people and the environment.
Concern regarding these issues is reflected irrespective of nationality, and the desire for participation rights by residents of countries affected by such activities is justified. As we shall see, the international dimensions of public participation are somewhat less regulated than public participation at the national level. Nevertheless, there are opportunities, legal avenues and other informal channels which can be used to influence environmental decisionmaking in a transboundary and international context. But, how to start? Where to go for information? Where to go to complain? How to take action? How to become involved in the complicated legal procedures? How can the results of international conventions be applied? What legal remedies are available if a complaint is ignored? This manual does not provide all the answers, but tries to show the options, possibilities, and directions for action - what to do when the source of the pollution or the problem crosses borders or when certain international conventions, agreements or rules might be applied.
Where to begin? International law starts "at home."
Manual on Public Participation in Environmental Decisionmaking: Current Practice and Future Possibilities in Central and Eastern Europe, published by the REC in 1994, reviewed the existing national legal framework for public participation in 13 countries in the CEE region. It also discussed the nonformal possibilities for public involvement. The report Status of Public Participation Practices in Environmental Decisionmaking in Central and Eastern Europe published in 1995 by REC, examined how the existing legal framework is being used in practice, and analyzed the different nonformal channels for participation. This manual is a complementary issue to the REC manual series on public participation. This manual focuses primarily on public participation rights with respect to projects or activities taking place in one country which effect a neighboring country. Examples are cited and described in boxes to illustrate how public participation rights might be used in a transboundary and international context. Attention is also given to public participation rights concerning projects of major multilateral lending institutions active in Central and Eastern Europe.
We will mainly deal with public participation in a formal sense. The nonformal methods of public participation, such as demonstrations, hearings, protest meetings, letters to newspapers and newsletters, pamphlets, brochures etc., are also important tools in such cases, but are only briefly mentioned. These, as well as the different techniques and the possibilities for using them in combination with formal instruments, are elaborately described in the above mentioned publications. However, we shall see many practical examples of how the formal and nonformal instruments can supplement each other, in the second part of the manual.
Formal public participation rights demand active participation by citizens and nongovernmental organizations (NGOs). Nothing happens automatically. Public participation in an international context requires a great deal more organization than is usually required at the national level. Using international law is neither simple nor straightforward. International law is very strongly interwoven with national law. For that reason, this publication supposes a certain basic knowledge of both formal and nonformal public participation techniques.
Public participation in a transboundary context requires even more cooperation between organizations across borders in order to gather as much relevant information as possible in both (or more) countries, and to develop joint cross-border action. In the chapters to follow, several examples are given as to the importance of such "transboundary NGO cooperation."
This publication is targeted at NGOs in order to demonstrate the function and use of international law, international lawmaking and practice. But this manual may also be useful to policymakers, civil servants, and representatives of business, to strengthen their understanding of an area in which they have important public responsibilities. With respect to educational institutions, the publication may also assist students who will find a simple explanation of international law. International and transboundary research projects are often carried out, especially in the field of nature and environmental protection, without any "translation" of the results to politicians, citizens or NGOs.
The use of international law for public participation is not an ultimate remedy to solve all problems which endanger nature and the environment. It is only one of the many means at our disposal. That is exactly why it is important to understand decision processes so as to take action at the right moment. The principles of public participation are the same for each country - international law is applicable in each one. This publication attempts to show how the law may be implemented. However, a detailed project description and project analysis is necessary. For that reason, guidelines in the form of a questionnaire are given in Appendix I, in order to help NGOs to compile such an analysis.
Principle 21 of the Declaration of Stockholm (the first U.N. Conference on the Environment, 1972) states: ÒStates have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction.Ó This principle was Òlegalized,Ó so to speak, in the same wording in, among others, the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London, 1972). |
It is a generally accepted and internationally recognized principle that a country may not harm the environment of another country (see Box 1). If this occurs, the country that was affected can hold the neighboring country accountable and, if necessary, take the matter to court or even to the International Court of Justice. This process has to be arranged by the government concerned; the citizens are essentially uninvolved. Limited exceptions are found in recent international environmental agreements concerning transboundary watercourses and transboundary results of industrial accidents. In these cases some rights are given to citizens to be informed and to influence the outcome.
Because environmental problems are not halted by borders, citizens on both sides of the border can be involved. The question arises, however, whether to allow citizens of a neighboring country the same rights granted to the country's own citizens. In other words, if citizens of a certain country have the right to information, the right to participate, or the right to take a case to court, do the citizens in the neighboring country have the same rights? This is a matter of the so-called territorial principle, which says that the law of a country only applies to its own citizens. Especially in administrative law, this principle may be a blockade for transboundary actions. However, one can argue that if the national law is silent on this issue, citizens of a neighboring country do have the same rights as the country's own citizens. More and more countries recognize that public participation should be transboundary in such cases. In the following chapters, this matter will be dealt with in more detail. We can establish herein, however that the opportunities for transboundary public participation largely depend on and are determined by the opportunities for public participation in one's own country.
The above-mentioned REC publications, the Manual on Public Participation in Environmental Decisionmaking and the Report on the Status of Public Participation Practices in Environmental Decisionmaking in Central and Eastern Europe, are important sources to consult.
Undoubtedly, there have been many changes and improvements in the CEE countries recently, partly as a result of the more open relations and closer cooperation on social, cultural, economic and political levels among all countries of the European continent. The desire of many Central and Eastern European countries to become EU members also plays a part in it. Adherence to democratic principles and practices is a condition for EU membership. The European Union has established public participation, access to information and general observance of declared and adopted European law. That is to say, apart from the more or less traditional criteria such as free movement of goods, people and capital, the European Union requires equal treatment of citizens of another member state. Though all members of the European Union are not perfect in this respect, and many matters require improvement, these EIU standards have to be accepted by nominees who wish to enter.
The results of the Third Ministerial Conference "Environment for Europe" (Sofia, Oct. 23-25, 1995) should also be mentioned. The conference placed special emphasis on public participation. It was recognized that much still needs to be done. However, countries were urged to ensure that a legal framework and effective and appropriate mechanisms were created to secure public access to environmental information and to judicial and administrative remedies for environmental harm. The environmental ministers adopted the "Guidelines on Public Participation and Access to Environmental Information" and initiated negotiations on a convention on public participation and access to information (see Appendix II). This convention will be on the agenda at the next meeting (Arhus 1998). This convention is of great importance, especially for the CEE countries, which one way or another, will be obliged to follow the provisions. This might require new legislation or amendments to existing legislation on public participation.
It is no exaggeration to state that, in the case of transboundary effects of an activity, there are no legal provisions for the group of citizens involved. However, these citizens are not completely empty-handed. There are several international agreements regarding both the protection of nature and the environment and protection of human health. The countries participating in these agreements must observe the rules, and are also sometimes given rules outlining how citizens can be - or need to be - involved in decision processes.
In addition, important financial institutions active in CEE, such as the World Bank, the European Bank for Reconstruction and Development (EBRD), the European Investment Bank and others, establish rules for public participation before making major investments. In the following chapters, all of these opportunities for direct public involvement will be explained in greater detail.
Here it has to be noted and emphasized once again that working in an international or transboundary context starts "at home." One must first know the national practice of the authorities on the international (multilateral, bilateral or even trilateral) level. Perhaps there are national rules, regulations or provisions on what to do when a neighboring country or its citizens are affected by national activities. Questions have to be asked, and answers must be found about which regulations are available at a national level. Do they work? If not, why not? If so, to what extent? If no sufficient solution to all these issues can be reached at a national level, then one has to try the international avenues. In this respect, cooperation, especially NGOs, is necessary or even, as we will see in the following chapters of this publication, a prerequisite.
In Chapter 1, it is emphasized that even if international instruments do not create an explicit right for citizens, they always create governmental obligations and international standards. These obligations and standards can be used on a national level to bring about public and political pressure. In Chapter 2, there is a discussion of the necessary elements for public participation which enable NGOs to become involved: access to information and the right to know, the ways and means of participation and how and when to use international legal and nonformal methods. Through lobbying and pressure, the nonformal means of public participation, the content of international agreements can be influenced in the decisionmaking stage. In this respect the role and function of NGOs is extremely important. In Chapter 3, a description is given of international law and normal international law practice and lawmaking. An inside view is given of how to influence these processes and at what moment this can be done most effectively. In Chapter 4, the possibilities and examples are shown in more detail for influencing these processes during the conclusion phase of international treaties and during ratification and notification. In Chapter 5, two very important examples of international rights and obligations of public participation in a transboundary context are described: the ESPOO Convention on Transboundary Environmental Impact Assessment and the Convention on the Protection and Use of Transboundary Watercourses and International Lakes. These two treaties contain far-reaching transboundary public participation facilities. In Chapter 6, the public participation practice and possibilities of the European Union are elaborated. This is an important issue, especially for those CEE countries applying for EU membership, which must follow all existing EU laws, but also because of the immediate possibility to use this package of regulations. Chapter 7 the relevance of international financial institutions, such as the EBRD, Global Environmental Facility (GEF), European Investment Bank, etc. These institutions must take into account certain criteria regarding public participation or environmental impact assessment when considering applications for official investments, grants or subsidiaries. Chapter 8 summarizes briefly what NGOs and states can or must do to make public participation in an international/transboundary context most effective and successful for the citizens, as well as for the official authorities. All of this is illustrated with practical examples from CEE or other countries. Many of these examples are discussed in detail in Part II. One case example from each of the 13 CEE countries is examined: how NGOs deal with transboundary or international environmental problems, how they use the international legal or nonformal instruments, what strategies they follow in trying to achieve a solution, and what lessons can be drawn from their efforts. The main conclusions of these experiences are summarized with an outlook to future possibilities in the final section. Practical information related to the subjects discussed in the manual is included in the appendices: guidelines for project analysis and case description, "Guidelines on Public Participation and Access to Environmental Information" (Sofia, 1995), a list and classification of some existing international treaties, a list of bilateral and regional agreements among CEE countries, a selection of international legal and quasi-legal instruments/provisions and guidelines concerning public participation and access to information in an international context, a selected list of literature for additional information, a list of useful addresses and contacts. A glossary of terms is also included. |
