PART I: International Dimentions

Chapter 5: Public Participation in the Transboundary Context

Karel Van Der Zwiep, Jiri Dusk

5.1 Introduction

A healthy and harmonious environment can be considered a fundamental and basic human right. This concept has far-reaching consequences, especially in the context of public participation and the legal framework required. The first and foremost crucial element for public participation is access to information. In order to participate in the environmental decisions made internationally or in neighboring countries, a citizen must know where to go for information and must have the right to do so.

A second condition for public participation is a say in the decision process. At a formal level, there might be a process through which the citizen is notified of an environmental decision being made and is given the opportunity to comment or to participate in a public hearing. At an informal level, there might be opportunities to use the media and other tools to inform the governmental agencies involved that there is concern among not only the public in one's own country but in the neighboring country as well.

A third condition for participation is some sort of legal or administrative remedy (the right to go to court, for example) to enforce access to information and public participation, and to enforce the substantive rights, e.g., the right of a healthy and harmonious environment.

If any opportunity for public participation exists internationally or in the transboundary context, it is in the Environmental Impact Assessment (EIA) procedure. It is generally acknowledged in international law as well, that public participation is an essential component of the EIA which is the most explicit procedure for ensuring public involvement. However, EIA has neither been put into practice offten in the context of citizen participation in a process under an international treaty nor in the context of citizen participation in environmental decisionmaking across boundaries. In most border regions in CEE countries, problems arise where lakes and rivers that benefit two or more countries are polluted or misused in one way or another.

In this respect, the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, concluded in 1992, has a strong provision concerning public access to information. It obliges the riparian parties that they:

"...shall ensure that information on the conditions of transboundary waters, measures taken or planned to be taken, to prevent, control and reduce transboundary impact, and the effectiveness of those measures is made available to the public."

Water quality objectives, permits, and results of sampling and compliance checks, are also mentioned. The parties to this convention "shall ensure" that this information shall be available for inspection by the public at all reasonable times free of charge. Parties must also provide members of the public (NGOs) with reasonable facilities for obtaining copies of such information from the parties upon payment of reasonable charges.

This is strong language that creates a cause for action by an individual or an NGO, if the provision is not complied with, and a strong instrument for citizen groups. As we saw in previous chapters and case examples, there are lots of "water problems" in the CEE countries (see, for example, the case of Ohrid Lake).

In connection with this convention, new possibilities are given in the new so-called ESPOO Convention, an international agreement on transboundary EIA. The convention on transboundary waters also envisages that "... an environmental impact assessment and other means of assessment shall be applied." Furthermore, it mentions that joint, coordinated assessments have to be carried out by the riparian parties and that the results of these assessments shall be made available to the public. Although this convention does not specifically mention the term "public participation," it can be assumed that it has to be in accordance with appropriate international regulations, including public participation. The ESPOO Convention on Environmental Impact Assessment in a Transboundary Context can be applied, giving new possibilities for public participation across boundaries.

The ESPOO convention was concluded on February 25, 1991 in Espoo, Finland under the auspices of the United Nations Economic Commission for Europe (UN-ECE). Most of the CEE countries have signed this convention, among them Albania, Romania, Croatia, Estonia, Poland, Slovak Republic, Hungary and Latvia. Though the convention has not come into force yet, according to international law principles, the governments of these countries are obliged to comply with the provisions of the convention (see Box 19).

Box 19: Compliance with International Law Principles

As we saw in Box 9, the international law principles are of great importance. Especially in the river Rhine case (see Box 11), these principles were thoroughly examined in court. In this particular case, the court argued that the right to health was not only guaranteed for French nationals by the French constitution, but extends to the protection of the health of foreigners. Furthermore, the court said that in granting the permit for discharge of polluted water into the river Rhine, the authorities had ignored the interests of foreign nationals of the neighboring states downstream, who feared their health might be threatened. Thus, in this respect, strong references can be made to the river Rhine case. In that case, France was held accountable in court to comply with the Convention for the Protection of the Rhine from Pollution by Chlorides, although this convention was not ratified by France at the time. However, France had signed the treaty, and in doing so committed itself to the international community.

The ESPOO Convention therefore can be used now, since the contracting parties have agreed on a resolution whereby ESPOO is recognized as if it had already come into force. This means the governments of these countries can be asked to follow up the obligations on the convention at this very moment. An affected party, for example, does not have to wait for notification concerning a certain project, as is said in Article 3.7 of the convention. The Slovak government is the first country to have already inserted the obligations of the ESPOO Convention in the National Act on Environmental Impact Assessment of April 1994 (Divisions I, II, III, Articles 25-34).

The ESPOO Convention -- especially in connection with the Convention on the Protection and Use of Transboundary Watercourses and International Lakes -- can be a powerful instrument to enforce public participation rights in both national and transboundary contexts. ESPOO can make a major contribution to the further development of public participation rights for the following reasons:

  1. The term "public" as defined by the ESPOO Convention (Article 1x: "one or more natural or legal persons") allows for participation in the EIA procedures by individual citizens and various organizations, and in doing so, promotes a broad and democratic representation in this procedure;
  2. The convention stipulates that competent authorities should involve the public in EIA at the earliest stages of this procedure. This means that competent authorities should promote public and NGO networks that would facilitate public participation in EIA procedures at international and national levels.

5.2 EIA and ESPOO: EIA As a Tool for Public Participation

As mentioned before, it is generally accepted and an internationally-recognized principle that a country may not harm the environment of another country. In the ESPOO Convention, a structure and a set of judicial instruments were created to avoid such situations.

When discussing the goals and principles of public participation in EIA we have to consider that:

  1. Freedom of speech and organization as basic democratic principles are also cornerstones for public participation in EIA. At the implementation of public participation in each country, the national traditions, institutions and social structure should be taken into account
  2. An efficient legal framework is considered important to implement public participation in general, as well as the relevant provisions of the ESPOO Convention.
  3. Reliable environmental information is needed and required, according to the Convention on Transboundary Watercourses, for effective public participation in EIA. Likewise, the results of public participation should be essential information for the policymakers (see Box 20).

Box 20: Information and Participation at an Early Stage

A planned ammunition utilization plant in Steinbach, Germany, may potentially cause air and water pollution in the neighboring local communities, in both Germany and Poland. Polish and German local and district authorities and local citizens were involved. The following official actions were taken:

  • September 1992: the German authorities translated the project design documentation and invited two potentially affected Polish district authorities (województwo Zileona Góra and województwo Jelenia Góra) to participate in a meeting. This meeting took place in 1993.
  • September 1993: the German authorities translated the environmental impact assessment report into Polish and arranged a public hearing with the Polish authorities in the office of the district authorities in Zileona Góra. Local citizens from potentially affected communities were provided with a bus to facilitate their travel to Zileona Góra. EIA consultants explained the project and the EIS findings. Furthermore, translation facilities were provided. The results: The German side promised the Polish local authorities access to files and the possibility for regular inspection of the the plant with the German local authorities during operation.
  • January 1994: the German district authorities sent a copy of the final decisions, translated into Polish, to Zileona Góra. The copy was forwarded to potentially affected local authorities. There were no objections.

The legal basis for this whole operation was a bilateral agreement on cooperation between Land Saksen and the district Jelenia Góra regarding significant projects of potential transboundary impact. The entire exercise was considered a success, though only five local citizens decided to participate in the public hearing. The most important success was the access gained to information at an early stage of the procedure, and the translation of the most important documents into native languages. Furthermore, the action preceded an agreement between the central Polish and German governments on transboundary EIA (1994) and the actual ratification and implementation of the ESPOO Convention.

(See also the general principles of public participation described in the REC Manual on Public Participation in Environmental Decisionmaking, Chapter I: Public Participation As An Instrument for Environmental Protection.)

EIA has proved to be a very good instrument in the decisionmaking process concerning environmental issues. However, it is not a universal remedy for all problems environmental authorities are faced with. It is a kind of auxiliary tool to ensure that environmental factors are explicitly considered at an early stage of the decisionmaking process. Even in the case of the ESPOO Convention (according to which an EIA should be applied at all appropriate administrative levels), EIA is a necessary tool to improve the quality of information presented to decisionmakers and to minimize adverse impacts, particularly in transboundary contexts.

EIA is also a very effective instrument to make public participation work or to start a system of public participation. In short, these are the main goals of an EIA, and in order to achieve these goals, a comprehensive organizational structure on environmental impact assessment and public participation is more or less imperative at the national level. An EIA without public participation is inconceivable.

Box 21: Definition of Impact

In the wording of the ESPOO Convention, impact means "... any effect caused by a proposed activity on the environment, including human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interaction among these factors." It also includes effects on cultural heritage or socio-economic conditions resulting from alterations to those factors.

Public participation as a tool in EIA:

  1. stimulates a well-balanced and open decisionmaking process, but cannot replace this process;
  2. brings conflicting interests to the surface, stimulates public discussion between all interested groups and improves the quality of projects;
  3. promotes the presentation of relevant information at the right moment;
  4. makes people understand and respect the final decisions on projects, even when public participation does not affect the final decision;
  5. gives an insight into environmental protection and long-term environmental problems;
  6. above all, public participation in EIA in a transboundary context is an instrument both to strengthen the relations between peoples and countries, and to prevent intergovernmental environmental conflicts (see also Box 22).

Box 22: Poisoning Transboundary Relations

In Mohovce, a nuclear power plant is under construction, which - according to Slovak politicians - has to be completed with money either from the EBRD or the Russian government. This project already caused great turmoil, especially between the Slovak Republic and Austria. In the debate related to this, Prime Minister Meciar recently declared: "The security systems of the plant are from Siemens. They work in Germany, so why shouldn't they work in Mohovce? The same goes for the equipment from Electricité de France." A thorough transboundary EIA, without national and international politics and political sentiments, and based on scientific data, figures and arguments, might provide far more informed observations and prevent political turmoil. A political debate can take place afterward, when the final decisions have to be made. The same problems are at issue in Temelin in the Czech Republic. Here, the project has already deteriorated considerably relations between the Czechs and the Austrians. (See more details about the Mohovce case)

5.2.1 ESPOO: Basic Principles of Public Participation

Public participation through the ESPOO Convention is founded on two basic principles: information and participation. Both the authorities and the public should have access to information and the right of participation. These are the cornerstones of every EIA at a national level, as well as at transboundary, bilateral or international levels. These cornerstones are so closely linked that implementation of the convention is hardly possible if either principle is neglected. Information and participation are a more or less daily matter for official authorities. Usually this is not the case as far as the public is concerned. This is one of the main reasons why so much attention is given to the issue of public participation in the convention.

The EIA is a method or mechanism, and, as far as the ESPOO Convention is concerned, it is also an obligation for the contracting parties to effectuate a system of public participation. On the other hand, public participation is essential to make the procedure of an EIA and the ESPOO Convention work.

Since national systems of environmental law and administrative procedures differ from country to country, the implementation of ESPOO in national legal systems may require new legislation or amendments to existing legislation. This may also provide an opportunity to harmonize national systems on the basis of the convention, and strengthen the process of transmitting information on transboundary environmental effects of proposed activities. Citizens and NGOs can also play an important role in this process, as described in paragraph 5.4. The seven appendices to the ESPOO Convention are highly significant in this respect. These appendices contain detailed information which can enable NGOs to use the convention as a tool for public participation in concrete cases. It provides information about whether a given transboundary activity falls under the convention, the rules of preparing an EIA, how to determine the environmental significance of an activity, the rules for inquiry, remedies available, etc.

Until now, participation has usually been defined as involving the general public, but cooperation between authorities is also important. Cooperation between authorities and participation of the public can be arranged simultaneously. Experience has already shown that this can be achieved by forming an project group with representatives from local communities, NGOs and authorities. In this way, authorities are faced with the real values and opinions of the public and are engaged in direct discussions with the public. However, contact between neighboring CEE countries is often rather poor and strongly influenced by political arguments (see Box 22). All the more, it is the responsibility of NGOs, especially in the field of nature and environmental protection, to take the lead. The ESPOO Convention can be of great help and assistance.

5.3 Questions and Problems

The ESPOO Convention, as well as the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, which was discussed in previous sections, are strong tools for developing and strengthening the national system of public participation. Nevertheless, there are a number of questions and problems which need to be solved to improve the efficiency of public participation when these conventions are applied.

Box 23: Public Participation Provisions of ESPOO Convention

Art. 2.2
Obliges the establishment of an EIA procedure that permits public participation and the preparation of EIA documents;
Art. 2.6
Forces the authorities to provide an opportunity to participate in an EIA procedure on both sides of a boundary;
Art. 3.6
Obliges the party of origin to notify an affected party at least at the same time as its own public. So notification depends on the existence of a system of public participation;
Art. 3.8
Indicates the legal aspects of public participation:
  • the right to gain information;
  • the right to lodge comments/complaints;
  • the right to initiate legal proceedings (appeal/lawsuits);
  • the right to participate;
Art. 4.8
Obliges the authorities to distribute the necessary documents (method, costs, language, receiving party).

One questions related to the Convention on the Protection and Use of Transboundary Watercourses and International Lakes is what action can be taken if a country does not follow up the provisions of the convention. Complaint procedures are restricted if little or no access is given to necessary information related to the quality of rivers and lakes or about permits. In the absence of a clear procedure, other legal remedies can be used. In most CEE countries there is a constitutional right of access to information. One can therefore sue a reluctant authority in judicial court and hold the authority accountable to follow up the obligations of this convention. If this avenue is blocked in one way or another, an appeal can be made to the arbitration panel of the convention or to the International Court of Justice. In such cases, judicial assistance is necessary from public interest lawyers, legal NGOs or public participation advisory services (see Appendix VII: Contacts) However, the informal or nonformal public participation instruments are always at hand to get authorities and the public to pay attention. NGOs play a key role by posing questions to the authorities, collecting facts and figures, promoting openness and taking repeated action, as discussed in Chapter 1.

Concerning the ESPOO Convention, a number of difficulties have to be overcome:

  1. The provisions on time limits for notification and submission of information should be specified (one or two weeks, 30 days or two months);
  2. The content of the notification should be clear (how to inform the public in the neighboring country);
  3. The responsibility for procedural steps that aim at participation of the public of the affected party in the EIA procedure should be clarified (who is responsible -- local, regional or national authorities?);
  4. The responsibility for translation and the costs of translations should be clarified (local, regional or national authorities?). (See Box 20, which illustrates the difficulties of translation, notification and other problems related to levels of responsibilities.)

Despite these problems and difficulties, the ESPOO Convention offers a large step forward in developing a system of public participation at the national level as well as in a transboundary context. Even more potential exists if there is a great willingness among the signatories to make this convention work. One positive development is that an expert group has been established (including governmental and nongovernmental representatives) which will elaborate guidelines on public participation, particularly in a transboundary context. In this expert group, answers have to be formulated to questions such as:

As mentioned in the beginning of this chapter, the contracting parties have agreed to use this convention as if it had already come into force. So, citizens/NGOs can now claim their public participation rights and use the strong commitment of their governments. The most efficient and cost-effective means are to use the informal or nonformal public participation instruments and lobby for implementation as early as possible.

Another future task is to prepare for the period when the implementation of ESPOO Convention will start. There are already some positive examples of good practices which can be followed and disseminated among CEE NGOs and authorities. The methodology developed by the Czech NGOs to combine the legal and nonformal tools in promoting a successful EIA public participation procedure, can also be used to facilitate public participation in a transboundary context, under the ESPOO convention.

Box 24: What is in the Appendices of the ESPOO Convention?

  • Appendix I contains an indicative list of activities with adverse transboundary effects.
  • Appendix II gives rules for the content of the environmental impact assessment documentation.
  • Appendix III gives general criteria which can be used to determine the environmental significance of activities not listed in Appendix I.
  • Appendix IV provides a set of rules for inquiry procedures.
  • Appendix V gives objectives for post-project analysis.
  • Appendix VI clarifies the elements for bilateral and multilateral cooperation.
  • Appendix VII sets the rules for arbitration, when a dispute arises between two or more parties about the interpretation of the convention.

5.4 Facilitating Public Participation in EIA with Transboundary Aspects

Nurturing transboundary relations

An NGO that learns about development plans near the border and finds out that the proposal might have transboundary impacts should always first consult the ESPOO Convention. The NGO should also think of what it might do to make the convention work or to secure public participation in the process of decisionmaking. Some tips on how to approach such a situation:

1. Transboundary NGO coalitions are a key to success.

Believe it or not, it is not important on which side of the border one lives. When working on a transboundary EIA, a transboundary NGO coalition which will work with the citizens on both sides of the border is necessary. This is a reasonable step for both political and practical reasons: to avoid accusations of being partisan. Also, one will be able to mobilize direct public and political support on both sides of the border.

An NGO coalition can be created officially with an aim to organize public debate about a proposed development. Naturally, the coalition should include local community groups from each side of the border and at least one legal expert who can advise on the legal aspects of the EIA procedure.

Local NGOs active in the affected area can be identified through national-level NGOs or NGO networks in both countries. It is also possible to send someone to find organized groups that can be partners in organizing local public hearings. Along with environmental groups, other groups can also be involved in the coalition (youth groups, women's organizations, health groups, etc.).

If it is a problem to find legal experts in the affected region or in the neighboring region, one can turn to other legal experts or networks in the respective country. One can also try to find assistance through the contact list included in this manual (see Appendix VII).

2. Start by exploring and using the formal legal instruments.

With help from legal experts, the legal opportunities and constraints can be assessed for:

Based on this information, the NGO coalition should jointly request the competent authority responsible for EIA in the country of origin to notify the affected country about the EIA. It is also important to request the competent authority responsible for EIA in the affected country to submit a formal request for transboundary EIA to the country of origin. The NGO coalition should follow up its request in both countries.

3. Public participation usually is of the quality NGOs or individuals can organize.

Based on the provisions of the ESPOO Convention, the goal of the NGOs should be to ensure that the public in the affected country has the same chances of access to information and participation as the public in the country of origin.

However, even if it is possible to get the same level of participation in both countries, the NGOs might not be satisfied with the opportunities for public participation. Few countries in the CEE region have good public participation systems, but NGOs can organize parallel public participation processes that can open the decision process beyond the country's legal provisions.

NGOs should not rely only on legal processes to involve the public. It is natural for NGOs to take the initiative and create NGO-organized processes on one or both sides of the border. If they want to be effective, however, it is important to use this parallel public participation process appropriately in the official permitting process. This means NGOs need to follow and meet the conditions of the administrative procedure and deadlines in the country of origin.

Transboundary cooperation: the key to success.

A parallel public participation process can - in terms of transboundary EIA - have the following structure:

1. The NGO coalition organizes independent public debate about the scope of EIA on both sides of the border.

As soon as NGOs learn about the beginning of an EIA process, it is necessary to organize independent public meetings to find out what impacts and alternatives the affected population would like to have assessed and what mitigation measures to evaluate. This process is called "scoping."

These public meetings - generally known as "scoping meetings," since the scope of EIA is thereby determined - should be organized, preferably, on both sides of the border. Having similar early public debate on both sides of the border will enable NGOs to raise the necessary public and political concern for the EIA in both countries. Even more important, perhaps, it will help to prepare NGO positions for commenting on the EIA by the time it is released. This is one more reason why NGOs should not forget to invite journalists to all the public meetings and to use the media opportunities to inform and raise the affected public's awareness about the problems and possible alternatives.

Public scoping meetings might have a rather simple format. The two main issues they should focus on are:

The result of the public scoping meetings on both sides of the border should be well-recorded. It should be sent to the competent authority and media in both countries as suggested terms of reference for the environmental impact study (EIS) preparation.

2. The NGO coalition organizes independent public debate about the quality of EIA documents on both sides of the border.

Once the EIA documentation is released in the country of origin, the NGO coalition should concentrate on potential transboundary impacts. When the translation of EIS is available in local languages, the coalition should again organize public hearings in the affected country to discuss the quality of the official findings of the EIS. Similar hearings should be organized in the country of origin, where the main aim is also to raise public concern about the transboundary aspects of certain impacts.

The format of the public hearing can be as follows:

The same rules apply for the organization of the public hearings on the EIS as for the scoping meetings (see above). The NGO coalition also should invite as many local and parliamentary deputies and journalists as possible to make an impression on them.

Again, it is important to follow the official, legal procedure. The list of comments obtained during the public hearings should be provided during the official comment period in the country of origin, and to the competent authorities and the affected municipalities in the affected country.

3. The NGO coalition organizes independent public debate about any other step in the EIA process and the post-EIA decision.

The system of public debates should continue until the final decision is issued. After issuance of the decision, it is necessary to organize the final public debate to find out public feeling about the matter and thereby assess the base of public support for any appealing action within the country of origin, at the appeal panel of the ESPOO Convention or at the International Court of Justice.

It is a well-known rule that the attention given to appeal is commensurate with the public support for it. The chances of achieving a change through an appeal, therefore, are predetermined by the quality and extent of previous public discussion on the issues. Good preparation and timely efforts are therefore very important for ensuring a sucessful outcome.

REC * PUBLICATIONS * BEYOND BOUNDARIES * INTERNATIONAL DIMENTIONS

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