As far as international treaties or conventions are concerned, the so-called Vienna Convention on the Law of Treaties is important. The convention establishes rules regarding governmental fulfillment of treaties. The concept of a treaty is herein described as an international agreement between states in written form and under international law. The Vienna Convention also states: "a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." Besides, the Vienna Convention stipulates that if parties (countries) have reached an agreement, they are obliged to abstain from acts that might affect the object of the treaty. The Vienna Convention contains other rules, but within the scope of this publication it is not possible to go into these in detail. It is more important to note that this convention offers citizens and NGOs the opportunity to take action when their governments fail to observe and implement all kinds of treaties related to nature and the environment. The kind of action which can be taken will be described later on (see the table in paragraph 3.4).
This publication deals mainly with treaties on subjects concerning nature and the environment. For two decades, these treaties have steadily increased in number. The classification of the treaties in Appendix III shows how many of these treaties have been concluded to date. Appendix IV gives information on regional conventions, treaties and agreements among Central Eastern European countries. Appendix III also shows how extensive is the number of subjects regulated by treaty. Mostly, three or more countries are involved in these treaties, the so-called multilateral treaties. However, there are also several treaties that only apply to two or three countries, the so-called bilateral or trilateral treaties. What kind of treaty a country is joining, or is a party to, can be verified at the Ministry of Foreign Affairs. Well-stocked university libraries or international institutions (e.g., UNEP, UN-ECE or the Council of Europe) also have this information at their disposal (see also paragraph 2.4).
In contrast with hard law, there is also "soft law." This refers to a type of regulatory conduct which is not binding in the same sense as hard law. Recommendations, declarations, resolutions and the like made by international conferences or inter-governmental organizations would be such examples. These provisions can be characterized as "rules which have to be considered as law in so far as they fix norms with which states should comply, but which cannot be enforced."
This particular type of international (soft) law is of great relevance as contracting parties to a convention are obliged to hold regular meetings to coordinate and develop its content and provisions.
Many treaties, and certainly those concerning nature and the environment, have in this way a monitoring system that makes it easy to check to what extent the countries that have signed a treaty really observe it. The treaty can also be improved and/or changed by means of this system. Usually this is done at periodical meetings of the countries associated with the treaty concerned (the contracting parties). At these meetings, developments concerning the treaty are discussed, evaluated, and various parts elaborated and laid down in resolutions. Especially more recent treaties offer numerous opportunities for the public to influence this monitoring process. This process is carried out by so-called national and international preparatory committees, working groups or expert groups in which NGOs are sometimes included as observers. These open drafting processes make it far more difficult for a country to ignore the obligations of a treaty (see Box 9).
International law is governed by a set of common principles to be examined, and for which states can be held accountable. Firstly, there is the general rule of pacta sunt servanda: treaties have to be complied with because a promise is a promise. Secondly, there is the principle of restricted sovereignty: a state cannot always do as it likes, e.g., a country may not harm the environment of another country, and as a consequence, its own sovereignty is more or less restricted. Good neighborliness is another well-known principle of international law. A state should behave like a good neighbor towards bordering countries, e.g., neighboring citizens should be treated accordingly. More or less comparable is the non-discrimination principle, which means that when planning an activity, the state has to take into account the legal interests of foreign nationals of neighboring states. |
The role and functions of secretariats should also be mentioned. Sometimes provisions are made in an international convention to establish a special secretariat, e.g., the Ramsar Convention (1971) or the Oslo Convention (1972). These secretariats are responsible for developing a special monitoring system, apart from their normal duties to organize meetings of the contracting parties and to coordinate scientific research and/or expert groups. An international treaty may also be linked to an international organization, such as the Berne Convention (1979) to the Council of Europe. Most of the time, however, the secretariat functions are taken care of by the government acting as depository of a convention.
The Ramsar Convention, the Convention on Wetlands of International Importance (1971), undoubtedly comes under the concept of "hard law." In 25 years, this treaty has developed into a powerful institution with a secretariat, regional departments, standing committees, scientific committees, a periodical newsletter and triennial meetings of contracting parties. At these meetings, strategic plans are made for wetland protection and wetland management, and participating countries account for their wetland policies through national reports. At the meeting of the contracting parties (Canada 1987), the Greek government was held accountable for destroying some important wetlands designated as protected areas under the Ramsar Convention, e.g., Lake Prespa. Under heavy international pressure, Greece had to alter its policy. At the meeting of the contracting parties (Montreux 1990), the Spanish government was held accountable for its policy with respect to the Cota Do–ana, the Belgian government for its policy with respect to some parts of the river Scheldt, and the German government for its policy with respect to the Dollart Bay. At the meeting in Kushiro (Japan, 1993), the Dutch government was held accountable for large scale gas drilling in the Wadden Sea area. In all these (and more) cases, the national governments were obliged to adapt their policies in these areas. The pressure on these governments was also made possible by the active participation of NGOs who attended the meetings of the contracting parties as observers. At this moment, 90 countries are members of the Ramsar Convention Ñ among them the following CEE countries: Bulgaria, Hungary, Poland, Albania, Yugoslavia and Russia. All the countries together have listed 765 protected wetlands covering 51 million hectares all over the world. The newest members, as from November 1995, are Latvia and the FYR Macedonia. Latvia designated Lake Engure, Lake Kanieris and Teicu un Pelecares bogs as wetlands of international importance. The FYR Macedonia named Lake Prespa. |
Though countries cannot be forced to observe and keep international laws directly, a government that does not fulfill the provisions of a treaty can be charged with unlawful acts under the Vienna Convention. These possibilities may differ from country to country. Depending on national law, legal aid and support may be required to fulfill them. However, international law does offer individual citizens and NGOs opportunities to fight for issues concerning nature and the environment through lawsuits based on civil law in a court of justice. Experiences elsewhere have shown, however, that this is a very difficult and often unsuccessful or unsatisfactory avenue. More results can be expected from public law actions, based on public or administrative law, e.g., by requiring the possibility to participate in a decisionmaking process with transboundary aspects; by requiring the government to follow up the obligations of the ESPOO Convention; by requiring information from the government regarding international obligations, etc. One must also bear in mind that in such cases starting a judicial procedure often ends up in a political solution. A judicial procedure, i.e. "using the national formal public participation rights," is very often the beginning of a (political) debate on the issue and the main aim of public participation - also in an international context (see Box 11).
The use of international law is not always easy. State practice in treating environmental pollution and catastrophies shows that states refuse or are very reluctant to take measures because most are not politically opportune. In particular, they abstain from filing a lawsuit against the polluting state. In the Chernobyl case (1986), the governments of Germany, Austria, Sweden, Switzerland and Finland immediately expressed their burning indignation, and were determined to claim compensation from the former USSR. But in the end, no lawsuit was filed. Subsequently, individual citizens in Germany, Austria and Switzerland tried to get some sort of compensation through national courts for the damage caused, again without success. This shows that civil law actions (based on civil law) in transboundary pollution matters have little or no result, contrary to public law actions (based on public or administrative law) in transboundary matters, especially if large population groups are involved. Germany-the Netherlands: In Lingen, on the border between the Netherlands and Germany, a permit was granted for the construction of a nuclear power plant. Dutch citizens living at a distance of 25 kilometers wanted to participate in the discussion and make objections. At first they were not admitted to the German courts. By further legal action in the German courts, which brought them to the highest authorities, they won the right of public participation. This case also played an important part when the decisions were made on noise pollution, with respect to the airports of Salzburg (Austria) and ZŸrich (Switzerland). Austria-Czechoslovak Republic: In the late eighties, Austrian citizens held a lawsuit against the nuclear power plant in Mohovce at a distance of 115 km. In 1988, their actions resulted in negotiations between Austria and the Czechoslovak Republic regarding an agreement on nuclear power stations. This treaty was signed in 1989, and it provides special obligations for public participation, such as access to information, early warning and consultation on the explicitly mentioned power plants of Mohovce, Temelin and Joslovske in Slovakia. (See more about the new development concerning Mohovce.) Austria-Slovenia: In the early 1990s, Slovenian citizens objected to an Austrian permit for the construction of a hydroelectric power plant at Soboth. This action was dismissed by the Austrian courts. However, the Slovenian government can bring the case to the International Court of Justice. France-Netherlands: In 1981, a province, one municipality and eight NGOs in the Netherlands claimed judicial actions in a Dutch court for annulment of three permits in France, allowing a French company to discharge large amounts of chlorides into the river Rhine. The action was successful. The court decided the permits were prohibited by the Convention for the Protection of the Rhine from Pollution by Chlorides. And although France did not ratify this agreement, France was held accountable for it because it had signed the treaty. A remarkable point in all these examples of transboundary pollution is that citizens took the first step towards action, and stood up for their public participation rights in the licensing procedures. At first they went to their own, national judicial authorities (national courts). Although their actions did not always lead to a definite and satisfactory result, they had an international or bilateral political follow-up. Actually, only politics can solve transboundary environmental problems between two countries. The opportunities for citizens and NGOs to influence these "political decisions" will undoubtedly grow because of the increased flow of information provided by the Council of Europe's Convention on Civil Liability for Damage to the Environment (1993), the EEC Council Directive on the Freedom of Access to Information on the Environment, and other international agreements (see Appendix V). |
The initiative to create a treaty is usually taken by one or more governments who jointly want to solve a problem. But private organizations can also take the first step. A striking example of private initiative is given by the Ramsar Convention on Wetlands of International Importance. International and national groups of hunters and environmental organizations were the first to insist upon global protection of these important conservation areas. A few governments adopted their idea and arranged an international conference in Ramsar - a city in Iran that gave the convention its name. This conference was concluded with a plan to work out an international treaty, and so the process of negotiations started. At this stage, it is not unusual to establish a number of national or international preparatory committees to formulate the text of the treaty. This is an opportunity for public participation.
A more recent and even striking bilateral example can be found on the border between Estonia and Russia. After the USSR collapsed, Lake Peipsi became an international lake between Estonia and Russia. Many environmental problems arose in connection with polluting the lake from both sides and also with regard to unsustainable use of its resources (fish). The Estonian Green Movement and Lake Peipsi Project, after conducting several meetings, finally prepared a draft agreement to safeguard the lake. This became the basis for official negotiations between the Estonian and Russian governments. In January 1996, this first-ever bilateral environmental agreement between Estonia and the Russian Federation was signed (see case example).
Conventions are concluded on the basis of consensus, as a rule. When negotiations have concluded, the treaty is signed by the participating governments. This means that the contracting parties agree with the wording of the treaty. The treaty may imply that the parties give it the force of law by signing. The Treaty on Cooperation against North Sea Pollution by Oil (1969) for example says: "... this treaty comes into force two months after the date at which six governments have signed without the condition of ratification..." Usually, however, ratification is required before a treaty will come into force. This is shown, for example, by the Treaty for the Prevention of Marine Pollution by Dumping from Ships and Aircraft. This treaty (Oslo, 1972) says: "...this treaty has to be ratified. The deeds of ratification have to be filed with the Norwegian government." In other words, after agreeing on the wording of the treaty and signing, the parties (governments) have to ask their own parliaments for approval, and make an official statement of this. Some instrument of ratification, acceptance, approval or accession is needed. Parliamentary approval is often a requirement within national constitutions. Since conventions are negotiated by diplomats and unelected officials, the involvement of parliament, in theory at least, involves the people's representatives. Only then is the treaty binding. But, as stated before, if a government has signed a treaty and has thus agreed, the general obligation applies under the Vienna Convention to abstain from acts that might affect the object and the purpose of the treaty. This obligation (from Article 18 of the Vienna Convention) is of special importance when treaties are concerned with the environment, since the environment might be harmed irreparably (see also Box 11, France-Netherlands case).
In most countries, a treaty can only be ratified after parliamentary approval. The procedure for receiving approval is usually set down in the constitution. In some cases, this is done by law or by so-called tacit approval. However, this procedure of approval may differ from country to country. In the case of a tacit approval, the government only informs parliament that an agreement has been reached on a certain issue. Discussion is still possible, especially regarding whether the government has successfully negotiated or not, but a special law of approval is not required. If the results of the negotiations are considered unsatisfactory, parliament can send the government back to the negotiation table. There is also the opportunity to influence the treaty by means of public participation at this point. This is especially the case in bilateral or trilateral treaties (see Box 12).
The northern boundary between the Netherlands and Germany is formed by the Dollart Bay, the last brackish water biotope of its kind in Europe. A couple of years ago, the German city of Emden planned to construct a new harbor in this area. For that purpose, the river Ems had to be rerouted. Such an operation would have been fatal for the unique habitat of the Dollart Bay, a nature reserve on the Dutch side. In this case, it was necessary to conclude a bilateral convention between the Netherlands and Germany because there is no clear boundary between the two countries. At the stage of negotiations, the text of the draft convention was strongly influenced by citizens, farmers, fishermen and NGOs from both sides of the border. Essentially, they were not satisfied with the results and started a lobby campaign in the Dutch parliament. The parliament subsequently decided that the government had to go back to the negotiation table. This resulted in an improved convention, although this treaty never came into force since the whole project was canceled in 1991. |
After approval and ratification, the treaty comes into force in general. A bilateral treaty usually determines that the treaty will come into force on the day the contracting parties exchange the documents of ratification - a mutual notification that all the requirements of approval have been met on a national level. The moment a multilateral treaty will come into force often depends on a certain number of ratifications or other instruments of approval. The governments that send their notifications to the country where the original text of the treaty is filed determine when the treaty will come into force. A notification of approval does not always follow this path, however. It can also go to the interim secretariat of the convention (e.g., the Convention of Ramsar) or the secretariat of the organization under whose auspices it was agreed (e.g., UN-ECE regarding the ESPOO Convention).
Finally there is the stage of publication. This is also regulated by the constitution of a country. Usually the treaty is published in the Official Journal, another important source of information. Every treaty that has been concluded by a U.N. member state is registered at the U.N. secretariat under Article 102 of the Charter of the United Nations. The treaty is then published in the U.N. Treaty Series, also an important source of information.
The opportunities for public participation in all these stages will be extensively dealt with in the next chapter. It is extremely important to know how a treaty is created and which procedures are followed. Though some details differ from country to country, a schematic overview is provided below.
| Phases of Making an International Treaty | |
|---|---|
| NEGOTIATIONS | Discussion of content by representatives of governments and official delegations, sometimes through preparatory committees or expert groups in which outside experts and NGOs are sometimes included |
| SIGNING | Reaching final agreement on the contents and text of the treaty and recognizing by signing |
| PRESENTATION | Publication of the treaty in the national Official Journal to inform the public |
| CONSIDERATION | Parliament examines the content and text through a process of reading and discussion in commissions and/or plenary |
| RATIFICATION | Usually required for the treaty to be binding. This can be (a) tacit or (b) explicit by law. |
| NOTIFICATION OF DEPOSIT | Notifying secretariat and, via secretariat, other contracting parties that all national requirements for approval have been met |
| COMING INTO FORCE | The rules as to this are usually to be found in the treaty |
| PUBLICATION | Publication in the national Official Journal and U.N. Treaty Series in order to inform public and to implement the treaty |
There are several examples where NGO experts have been included in governmental delegations as a result of lobbying. such NGOs are able to attend and contribute to international negotiation processes. National-level NGO lawyers recently attended, for instance, the Ad Hoc Working Group meeting on the Draft Convention of Access to Environmental Information and Public Participation in Environmental Decisionmaking in Geneva, June 1996, as a members of the Polish and Dutch delegation.
An international NGO, representing the civil groups of a certain region, may be invited as equal party to the negotiation phase. Acting at the international level is more difficult than influencing national governments and policymakers. Strong cooperative preparation integrating the views of NGOs and other experts can contribute to well-based arguments and substantial input into the negotiation process. In Geneva, in the abovementioned working group meeting, an NGO delegation - NGO Coalition - with the support of Western and Central Eastern European environmental organizations, represented the NGO movement in the formal meeting of the Ad Hoc Working Group. This was the case regarding the Biodiversity Convention and the Landscape Convention, for example, where the IUCN was strongly involved.