Thus, there was very little in the body of international law that allowed for public participation by individuals until the most recent treaties completed in 1992 and 1993. In general, when a treaty refers to "participation" it means participation by the government. When a treaty refers to "exchange of information," it normally means exchange between governments. If participation and exchange of information are interpreted as being for the public, this is something a national government must decide through its own national laws and regulations. This is where the opportunity to influence the enforcement of international law lies. In other words, international law has to be enforced nationally. Through international treaties, the national governments confirm by their signature a pledge in public, and in an international forum, to either take or abstain from certain actions. These pledges have to be kept. Individual citizens can pressure their government to fulfill its pledge by means of public participation rights.
| Strategies/Opportunities for Public Participation in International Treaties |
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| PREPARATION |
| EFFECTUATION |
| ENFORCEMENT |
| MONITORING |
Only a few conventions follow EIA procedures. This only means that states are "encouraged" to involve the public by giving notice of the EIA process and allowing for public comment. The convention that takes this process the furthest is the ESPOO Convention on Environmental Impact Assessment in a Transboundary Context (1991).
The United States, Canada and Mexico are developing a process to assess the environmental impact of pollution that crosses their common borders. This is done in the framework of the North American Free Trade Agreement (NAFTA, 1994). When one of the NAFTA partners plans a project that might have significant adverse effects across the border, the adjoining partner must be notified. The affected country would be allowed input into the domestic environmental impact assessment of the nation carrying out the project. A cross-border environmental impact mechanism is now under development by the three countries. In this respect, one of the principles is "good neighborliness" (see also Box 9). This principle is defined by the three states as "willingness to cooperate with neighboring states to seek to inform an affected state of relevant data and a willingness to take appropriate steps to address the legitimate concerns of those potentially impacted by activities in another state." At the same time, the three countries are striving to promote full public participation in the environmental decisionmaking processes. Local communities play a unique role in protecting the environment and ensuring that economic growth does not endanger natural resources and ecosystems. For this reason, the three countries decided to create a CND $2 million North American Environment Fund to offer grants to community-based organizations for projects that promote an integrated approach to ecosystem management and sustainable use of natural resources in the region. This is a fine example of public participation in a transboundary context, although the amount of money available is relatively small. Not only are the states aware that their activities may harm their neighboring partners, but mechanisms are developed that enable parties to address potentially thorny issues in a cooperative vein rather than in a crisis. These states also take a leading position in promoting an active attitude for public participation. Ultimately, these activities may serve as valuable experiences for other countries. |
Most of the recent international environmental agreements directly mention public access to information. Most have provisions concerning exchange of information between governments, but traditionally it was assumed that each government would provide its own citizens with information. National public participation rights again provide the opportunity for the public to gain insight and influence in international law. Appendix V gives a selection of legal and quasi-legal instruments concerning public participation and access to information in an international context. When national or international actions are taken, these instruments can be referred to. After all, the agreements have been made by governments. It is absolutely legitimate to ask national governments to keep their agreements (see also Box 16).
Albania-FYR Macedonia: Lake Ohrid borders both countries. In both countries large numbers of people depend on the natural resources of the lake. The water is used as drinking-water, for fishing, and for recreational and agricultural purposes. However, these resources are under great environmental pressure from water and air pollution caused by mining activities in the catchment area of the lake, by unpurified sewage discharged from cities and villages, and by the negative consequences of mass tourism. The result is a decrease in fish-stocks, a decrease in the quality of the environment and natural assets, and a decline in the recreational and agricultural functions of the lake. These problems may be the subject of a bilateral treaty (Action Plan) for the protection, conservation and sustainable use of the lake between the two countries. A similar situation exists at the border between Albania and Yugoslavia (Montenegro) regarding the catchment areas of the Drini River and the Shkodra River. Estonia-Russia: Northeast Estonia (the cities of Narva, Kohtla-Jrve and Sillame) is one of the most problematic areas, not only of the Republic of Estonia, but of the whole Baltic region. It is a junction of serious transboundary environmental and social problems. Industrial pollution from two Estonian and Baltic power plants, and from chemical industries is affecting the local population. Emissions into the atmosphere over Lake Peipsi and the Gulf of Finland spread further into the neighboring regions. The NGO Lake Peipsi Project in Estonia strongly promotes a sustainable development project in the transboundary region of Estonia and Russia: the Lake Peipsi Chudskoe Watershed. Czech Republic-Austria: On the border of the Czech Republic and Austria, activities by citizens and NGOs against the nuclear power plant Mohovce led to an Agreement on Nuclear Power Stations between the two countries (see also Box 11). |
Contact with a congenial group of citizens or NGOs in a neighboring country is important. This may be especially difficult in CEE countries as a consequence of a long-standing communist regime and nationalistic tendencies and tensions. As a result, there is hardly any tradition of transboundary cooperation between citizens and NGOs in the region. This is especially the case in the borderlands of Bulgaria, Romania and Greece. Citizens and NGOs are ill-informed about the neighboring countries, though they are faced with the same problems The establishment of a nuclear power plant in Belene at the Danube River, which also affects the Romanians, and the rerouting of the streams from the Rila mountains, which also affects Greece, are examples.
In the case of other countries, however, we observe a growing tendency towards transboundary cooperation between NGOs: Slovenia-Austria, Slovenia-Czech Republic, Estonia-Russia, Czech Republic-Germany/Austria, Albania-FYR Macedonia, Latvia-Lithuania, Russia-Lithuania, Lithuania-Belarus, etc. (see case examples in Part II). Actually, cooperation is a condition for NGOs to be able to take action in transboundary issues. Every action, therefore, begins with making and keeping transboundary contacts.
A good example in this respect is the NGO cooperation between Hungary and Slovakia. In 1992, NGO groups in both countries established a common organization, Ipoly Unio, to protect the Ipoly, a border river between the two countries. Ipoly Unio now has three head office: two in Hungary and one in Slovakia. Although its main goal is environmental protection, it also aims at improving relations between the countries. The Unio urges more public border crossing possibilities and pleads for better nature protection facilities in the region. They developed plans for establishing ecological corridors between sensitive natural habitats crossing the border. Furthermore, Ipoly Unio gathered 75,000 signatures from people opposing the nuclear power plant Mohovce. Common efforts made it also possible to establish a Danube-Ipoly National Park on both sides of the border. In addition, the Unio organizes summer schools and issues pamphlets and booklets about the Ipoly river. Finally, they work in the field of environmental education and environmental tourism.
Many CEE governments and official authorities consider such actions "provocative," or even "disloyal to one's own nationality." For instance, the Czech authorities' treatment of transboundary activities of NGOs concerning nuclear energy was not friendly. There was a tendency to label the anti-nuclear movement as a "dependent branch of the Austrian policy." In general, the official Czech approach concerning nuclear energy is not to allow any public participation. The Czech NGOs used their transboundary contacts to change this official attitude. In other countries, the main problem is insufficient communication between the official authorities and the public. This has been the case between the environmental authorities of Estonia and Russia and the public and NGOs in both countries. The government does not communicate information about its activities and environmental problems to the public and there are no efforts at all to promote public participation. However, NGOs can take the initiative and can put pressure on the authorities to change the situation.
The same attitude can be found in Macedonia and Albania, where information also is not forthcoming. However, NGOs are also not always very active in collecting or providing information, facts and figures. NGO cooperation between the Slovak Republic and Hungary has proven to be very successful and fruitful. Furthermore, various forms of transboundary cooperation, e.g., in the field of scientific research, flourish between Hungary and Romania. However, these forms do not "translate" into interstate NGO cooperation or transboundary public participation. As said earlier, there are many obstacles and constraints when bringing public participation instruments into practice. (For more information see also the REC Manual on Public Participation in Environmental Decisionmaking, Chapter III: Public Participation in Central and Eastern Europe and Annex I).
As long as these prejudices exist, transboundary cooperation will be limited and the official authorities will often use these arguments to prevent or obstruct transboundary cooperation. In this way, they can do whatever they like. Transboundary cooperation, especially between NGOs, does not only require courage, but also considerable effort and perseverance.
In general, it can be concluded that, in principle, states are very reluctant to cooperate with other, particularly neighboring, states. They want to handle their own business. If there happens to be any form of inter-state cooperation, this is nearly always a result of pressure from NGO activities (see Box 15).
Preconditions for Successful Cross-Border Cooperation on Environmental Issues is the title of a study carried out by the Freiburg, Germany-based EURES-Institute for Regional Studies in Europe, POPLAR in Brussels and the Hochschule St. Gallen in Switzerland. The study is part of a research project on factors that influence cross-border cooperation on environmental issues. Cross-border cooperation or environmental conservation is a relatively new policy sector in the overlapping spheres of environment, regional and international policies, which has not been widely researched. It has, nevertheless, been empirically analyzed in the framework of a research project funded by the European CommissionŐs Directorate-General for Research and the Swiss Federal Office for Education and Science. The research project involved an international comparative study to assess environmental issues in different European border areas, alongside two extended regional studies, in the upper Rhine valley and at Lake Constance. Complementary case studies for water protection policy and public transport were also carried out. The project then went on to develop an explanatory model for cross-border cooperation on environmental issues, which can be used to construct recommendations. The results of this research project can be applied to other border areas where they can be introduced to play an important role in intensifying the cross-border cooperation on environmental issues. Copies of the cross-border cooperation study, priced between DM 20 and 30, are available from: EURES-Institute, Baslerstrasse 19, D- 79100 Freiburg, Germany. |
If more than two countries have to cope with the same environmental problems, multilateral treaties are required. The various forms of cooperation between governments, such as the European Union, the European Council, the European Parliament, the Pan-European Ministerial Conferences, etc., are sound platforms for consultation on the preparation of similar treaties at a pan-European level. But, as in the preparatory stage of bilateral treaties, initially national governments have to be approached. International cooperation can only be realized if national authorities participate. The actions citizens can take are not different from those taken when bilateral treaties are made. Though international law may seem abstract and "far away," in practice most of the bilateral, trilateral or multilateral treaties are the result of action taken by concerned individual citizens or NGOs. The more recent international treaties offer citizens and NGOs an increasingly important role in public participation (see Box 16).
Bordering the coastlines of Denmark, Germany and the Netherlands is a unique natural area: the Wadden Sea area. With a surface of more than 8,000 square kilometers, it is one of the largest and most important marine nature areas in Europe. For several decades, the three countries bordering it have worked hard to protect the area against various human threats: industrialization, overfishing, water and air pollution, mass recreation, mineral (oil and gas) extraction, and land reclamation. A Dutch NGO lawyer, together with a scholar from Utrecht University in the Netherlands, have examined in detail the various protective regimes of the three countries. They have concluded that the area is not safe at all, and that the numerous regulations have many loopholes and inadequacies allowing for further deterioration of the area. Therefore, additional measures need to be taken, both by the three nations bordering it, and at European and international levels. One of the main recommendations made by the authors is that a trilateral Wadden Treaty should be concluded as soon as possible between Germany, Denmark and the Netherlands, including far-reaching binding agreements and commitments. The book gives a good example and comprehensive information of transboundary NGO cooperation, as well as cooperation structures between the three states responsible for one and the same area. Integrated System for Conservation of Marine Environments: Pilot Study of the Wadden Sea. Karel van der Zwiep/Chris Backes; 1994 NOMOS Verlagsgesellschaft, Baden-Baden, Germany. ISBN 0066-5703. Price DM 58. |
Therefore, it is important in every case to verify whether an international treaty exists relating to the issue. Usually this will be the case. The next question is whether one's own country is a contracting party to the treaty, whether the treaty has been approved, whether the provisions have been "converted" into national laws or whether the national laws comply with the regulations set up in the international treaty. Experience shows that the latter usually has not been carried out and that authorities simply overlook the obligations of international treaties, whether intentionally or unintentionally. Usually, this can be revealed when a permit is granted in a specific case, for example for the construction of a harbor, an airport or a highway (see Box 17). The next natural question may be whether the projects concerned are planned in a conservation area, to which an international treaty applies. In that case, the obligations have to be met from the treaty that the government has concluded internationally. The authorities that grant the permit can legally be forced to do so in several ways. If this is not effective, an appeal can be made to the secretariat of the treaty concerned, especially when the treaty has a monitoring system, as described earlier. A secretariat of a treaty does not have any executive power of its own. However, by informing the secretariat about national practices of a relevant treaty, a process of consultation between the secretariat and the national authorities is set into motion. The matter can then be put on the agenda of the conference of the contracting parties (see also paragraph 4.3).
NGOs in CEE countries are beginning to find their way to judicial institutions to give their arguments weight, but also to test the public participation provisions laid down in the national laws. Provisions often appear to be interpreted very precisely, often contrary to the usual interpretation in many other (Western) countries or internationally. In Hungary, water management authorities refused to give a large NGO in Vác information about a case concerning the Dejtár reservoir. The Freedom of Public Information Act and the Act of General Rules of Administrative Procedural Law was cited and threats were made for a special data procurement court process. The matter was quickly solved and the NGO was allowed to participate. In a similar case, some green groups were initially denied access to the plans of the M0 highway around Budapest, but later this decision was reversed. In these cases, strong references could have been made to all kinds of international legal and quasi-legal instruments providing public participation obligations, as well as to the international practice which includes NGOs as a party. In the Czech Republic, the standing of NGOs has proven to be a particularly thorny issue. It is defined very sharply. This became evident in the case of the Temelin nuclear power plant, especially in the permitting process. In this case no access was given to information. Direct references could have been made to the international agreements and international practice. In Slovakia, an NGO argued in a court case that it represented the interests of citizens living near a forested area where the government allowed deforestation and other unsatisfactory management activities. The government argued that an NGO is not an affected party and does not have the right to participate in the administrative proceedings. In light of international law and international practice, this is a rather old-fashioned point of view, particularly since the same government signed numerous other international agreements in which NGOs play an important role in the process. |
The case of a TV transmitter tower in the Karkonoski Park in Poland exemplifies the use of semi-official channels to disseminate information and allow participation in transboundary cases. Furthermore, this case shows how useful and efficient it can be to make transboundary allies and contacts, since the contribution of the Czech statements was so important. The project proposed by TelecomPoland assumed demolition of the old transmittal tower and replacement with a new higher, more powerful one made of modern materials and with modern design. The problem was that the tower was located in the heart of the Karkonoski National Park, walking distance from the Polish-Czech border. National and district environmental authorities, local authorities, National Park Authorities, NGOs and the public were involved on the Polish side, and National Park Authorities on the Czech side. According to Polish law, a project which may affect national parks requires an opinion from the National Park Authorities. Karkonoski National Park authorities consulted NGOs about the project and informed their colleagues on the Czech side. Two meetings were organized with the participation of NGOs and the Czech counterparts to discuss the project design. As a result, both the Polish and the Czech National Park Authorities, together with the NGOs, made a statement opposing the project and criticizing the insufficient EIA. In turn, TelecomPoland started a public campaign to promote the project. Since the project is located within the national park, it required consent from the minister of environment, preceded by a procedure at the national EIA Commission. The commission invited interested parties to a hearing: the Polish National Park Authorities, NGOs, local and district authorities and those preparing the EIA procedure and project proponents. A statement from the Czech National Park Authorities and NGOs was presented by a representative of the Karkonoski National Park. In February 1996, the EIA Commission suggested the minister reject the whole project. |
Citizens and NGOs also have to take the initiative to see whether their own country has actually converted the obligations from the treaty into national conservation and/or environmental laws. This also requires self-motivation, because authorities usually fail to include international obligations (or do so insufficiently or grudgingly) in the national set of rules. In exposing the shortcomings of governments, citizens and NGOs have a range of possibilities to influence public participation at national and an international levels.
After all, we must consider that the use of international law is not the panacea to solve all environmental problems. It is only one of the means to do so. It is an effective means to attract international attention to local, regional or national problems, a fact governments usually do not like. But it is worth noting again that in cases of transboundary issues (that is to say, when neighboring countries are involved), all kinds of relations can be established below the governmental level. So it is not necessary to wait for the national government to take action.