Chapter 2: Bosnia and Herzegovina
ELMIRA KURBEGOVIC
The Dayton Peace Accords, as they later became known, contained a general framework agreement for peace in Bosnia and Herzegovina. More specifically the Accord contained the following provisions:
As the most important part of the Dayton Peace Accords, the Constitution of Bosnia and Herzegovina envisages the state as being comprised of two multi-ethnic entities, namely "the Federation of Bosnia and Herzegovina" and "Republika Srpska." Each entity was to be organized with a large degree of autonomy as to legislative, administrative and economic systems. Only certain functions of the state were to be organized jointly.
The following institutions were to be joint responsibility of the entities:
For implementation of these responsibilities, the following bodies were to be formed:
Subsequent to the adoption of the constitution agreed to at Dayton, each sovereign territory adopted its own constitution, regulating the matter to one of regional importance.
One has to picture the situation in the country at the time of signing of the Dayton Peace Accords. Not only was two-thirds of the country's infrastructure and industry in ruins, but from the environmental point of view, the situation was bordering on catastrophic. There were about two million land mines to be de-activated, thousand of tons of waste and garbage that had not been handled for four years in urban areas, millions of cubic meters of forests being summarily denuded, waterfalls being "stolen" and rivers re-directed. And this is not to mention tons of humanitarian aid in pharmaceuticals that are way past the expiry date with no adequate disposal facilities.
As to the legal framework, the situation was equally chaotic: a vast number of temporary decrees, rules and regulations with the force of law were brought about during the war; a number of laws were adopted from the previous legal system of the Socialist Republic of Bosnia and Herzegovina, and from the date of the signing of the Dayton Accords. A number of new laws and regulations were enacted both by the Federation, the Republika Srpska and local authorities. To make the picture complete, one has to know that freedoms of movement are still widely restricted, and the legal system still functions with great difficulty.
As national priorities, environmental issues rank low and initiatives in this field are scarce. Therefore, as research will indicate, public participation in environmental issues is reduced to sporadic cases where the general interest of the population may be endangered and emergency measures need to be applied.
Responsibility for environmental issues, by the Dayton Peace Accords, were given to the various territories. The general legal framework was given in the constitutions of the Federation of Bosnia and Herzegovina and the Constitution of Republika Srpska. However, in order to help achieve harmonization of the entity environmental legislation consistent to the principles of international law and European Union standards, fresh initiatives were recently formed by the OHR (Office of the High Commissioner) for creation and establishment of the joint Environmental Steering Committee. This committee will play a significant role in legislation preparation. And its role will become of particular importance since it will propose solutions to the state authorities (in the first instance, the Council of Ministries), and coordinate legislative activities with the mandatory implementation for the whole country.
The Constitution of the Federation of Bosnia and Herzegovina was enacted on March 30, 1994, two years before the Dayton Peace Accords. It was therefore adjusted to the Dayton Peace Accords with the 24 amendments that were enacted on June 5, 1996. Article 2 of the constitution, listing all the rights of the individual, does not explicitly mention the right to a healthy environment, as was the case in the Constitution of the former Socialist Federal Republic of Yugoslavia. The list of individual rights also does not include the right to free access to information, nor the right to petition. The only reference in regard to these rights is made in Point 2 (b) of this article where it says that the citizens enjoy "equal access to the public services", assuming that one of those services is for environment protection.
Chapter II b of the Constitution, dealing with human rights and elementary freedoms, establishes the institution of Ombudsmen of the Federation, however it does not give any clear duties to the ombudsmen as to the environmental rights of the individuals.
The organizational structure of the Federation is determined by the Federal Constitution. Ten regional cantons were established. Chapter III of the constitution deals with the distribution of the jurisdiction and competencies of the federal and cantonal authorities. Article 2 (Point c), of this Chapter prescribes that federal and cantonal authorities are jointly responsible for the "policy of environment protection", and in Point 2/i for the "use of natural resources." Article 4, point f of this chapter gives the cantons the exclusive authority to "pass the Regulations for the Use of Land, including Zoning."
Annex 2 of the Dayton Accords, which addresses transitional arrangements, has a provision that all the laws from the former Socialist Republic of Bosnia and Herzegovina that are not inconsistent to the Dayton Constitution may remain in force. (This turns out to be rather important for environment issues, since the Law on Urban Planing enforced in September 1987 by this provision has remained in force on the territory of the Federation of Bosnia and Herzegovina).
The Constitution of Republika Srpska was adopted in November, 1994, and has since undergone a series of amendments. A citizen's right to a healthy environment is incorporated in Article 35 that reads: "a person has the right to a healthy environment. Every person should be bound, in accordance with the law and his/her own capabilities, to protect and improve the environment." Article 59, (Paragraph 4), says that "the use and exploitation of property of special cultural, scientific, artistic or historical significance, or significant for the protection of nature or the environment, may be restricted on the grounds of law, subject to full compensation to the owner." Article 64 states that the "Republic shall protect and encourage the following: rational usage of natural resources, with the aim of protecting and improving the quality of life and in order to protect and restore the environment ... and conservation and enrichment of historical, cultural and artistic wealth."
In Article 68 (subsequently replaced with Amendment 32), amongst the responsibilities of the Republic, point 13 states "environment protection" and point 14 declares the establishment of a "public information system." When it comes to the right to hold referenda, such a right is not given to an individual directly, but indirectly through the National Assembly (Article 70, Point 5). Article 76 then further elaborates the decisionmaking process by prescribing that "The President of the Republic, the Government, and each representative or a minimum of 3.000 voters has the right to propose laws, other regulations and common elements." Article 77 says that "the National Parliament may decide to make a decision on some issues within its competence after a referendum of citizens is held."
Organization of the local authorities in Republika Srpska does not have cantons as the organizational form, but only municipalities. Competencies to the municipalities in the environmental field are given to the municipalities in Article 102 (Paragraph 1, Point 5) of the constitution.
It is important to consider that at the time when research for this report was being conducted, only drafts of the Law on Environmental Protection and the Law on the Protection of Nature were available to the researchers. All draft references, given in the text below, apply to the Law on Environmental Protection, since this draft regulates some important issues identified as main tasks for this report.
Since Bosnia and Herzegovina became a sovereign state, and specifically since the war ended two years ago, no international treaty - including the treaties having provisions on access to environmental information, public participation and access to justice - have been signed. In fact, as a special supplement (annex) to the Bosnia and Herzegovina Constitution, envisioned to be an additional instrument for human rights protection, amongst other listed international documents (treaties, conventions, declarations, etc.) is the UN. Convention on Human Rights (1948). This annex, which lists 21 international documents, was published in the "Official Gazette of the Federation of Bosnia and Herzegovina, No. 1/94." The Constitution determines that these international documents have the full force of constitutional provisions.
The attitude of the authorities in the Entity of Federation of Bosnia and Herzegovina is such that all the International Treaties of the Socialist Federal Republic of Yugoslavia are obeyed and acted upon as if ratified by the State. This attitude is based on the fact that, during the war, competent state bodies adopted the Law on Superseding the Laws of the former Yugoslavia as well as the Law on Ratification of International Conventions (Bosnia and Herzegovina Official Gazette, No.'s 5/92, 15/92, 13/94). On the ground of these laws, the Ministry of Foreign Affairs published an overview of International treaties that is implemented by the Republic of Bosnia and Herzegovina (Official Gazette of the Republic of Bosnia and Herzegovina No. 15/95, and No. 25/93). The participation of Bosnia and Herzegovina in the Regional and European Organization and NGOs is welcomed. Although the representatives of Bosnia and Herzegovina (mainly from the Federation) participate in a number of international organizations (i.e. the Danube Countries Organization), and that is, of course, of a great importance, the full legitimacy of its representation will be achieved at the time, when the joint representatives are appointed and approved by both entities.
Furthermore, the Federal and Cantonal joint responsibility for environmental policy is further reinforced by the provisions of the Draft Law on Environmental Protection, which prescribes the obligation for adoption of documents entitled "The Strategy of Environmental Protection in the Federation" and "The Environmental Protection Program", both slated for adoption by the Federal Parliament, once the pending legislation is enforced. The Article 18 of the Draft Law on Environmental Protection imposes the obligation for cantons to harmonize their environmental protection programs with the federal guidelines. Paragraph 2 of Article 18 further explains: "In cases where environmental protection programs are not harmonized, the environment protection program of the broader area shall be applied.
Comparisons between federal and cantonal legislation cannot really be made, since appropriate legislation has not immediately followed the new organizational structure of the federal and cantonal authorities as introduced by the constitution. Current practice also does not provide for the opportunity of making a reasonable judgment whether the local (cantonal) regulations are progressive or repressive, compared with the federal or state level.
There is no definition of environmental information in the law.
Conditions for Obtaining the Information
There is no explicit obligation in the Law for any public authority to provide information directly to citizens on environmental issues. But the Federal Ministry for Urban (Physical) Planning and the Environment has such an obligation towards the Federal Assembly and the Federal Government to prepare and submit reports on environmental issues on an annual basis. The cantonal authorities also have the same responsibilities consistent with the scope of their competence. Article 44 of the Draft Law on Environmental Protection adds to this current practice by proposing that "data and information from the register of environmental pollution are public and published by the cantonal body responsible for activities of protection of environment for its canton." The Federal Ministry publishes this annually for the whole Federation.
It was the case before the war that the state TV and the local media in the urban areas (i.e. Sarajevo, Zenica, Tuzla) were daily informing citizens if and when air pollution exceeded permitted levels. However, such levels were prescribed by the local authorities. There were several cases, for instance, the permitted level of SO2 in the air varied significantly from town to town. What was forbidden in Sarajevo, for example, may have been permitted in Tuzla.
The law does not set a specific deadlines for the time limits for responses to requests. As a general rule, the competent authority or, in other words, the Federal Ministry for Physical Planning and Environment and the local Cantonal Administrative Authority assess all requests and respond in accordance to the Law on General Administrative Procedure if provisions of other laws do not stipulate otherwise. However, the Draft Law set the deadlines for the competent authority to provide those information within one month upon the receipt of request.
The right of all citizens to receive information/environmental information implicitly exists in the Constitution of the Federation of Bosnia and Herzegovina (Article 2, Paragraph 1, Point 2/b), which reads "all citizens have the right to equal access to public services."
Regarding passive legitimacy for obtaining information on environmental issues, such a right is explicitly given to the citizens in the new Draft Law on Environmental Protection (the draft has been consolidated by the Ministry, but it has not yet entered the legislative procedure). This procedure includes sending the draft to the relevant ministries for their consideration. Afterwards, on the government session, the draft is approved or returned to the sponsor for correction. If approved, it is passed over to the Legislative Committee of the Federal Assembly to be put on the agenda of the session of the House of Peoples and the House of Representatives. At the parliamentary debate, the draft either gets amended or adopted in the proposed form. To come into force, the draft has to be adopted in the identical version of the text by both houses of parliament and published in the Official Gazette of the Federation. This effectively means that the current Draft is at least six months away from being adopted.
Article 15 of the draft reads: "Citizens have the right to timely information on environmental pollution and damages, actions taken in that respect, and accordingly, free access to data on the environmental situation in accordance with this law and other regulations."
The flow of information from the private sector to public authorities is initially built into the licensing requirements for building licenses, whereby a part of the essential documentation is the Study on Environmental Impact of the proposed building. The Federal Ministry for Urban Planing and the Environment has issued permits to a number of private contractors who are competent for preparation of such studies. Once enclosed to the documentation, it is considered accurate, and the ministry will base its decision for issuance of the building permit on it. Moreover, Article 41, Point 3, in the chapter entitled "Registration and Control of Activities Jeopardizing the Environment" of the Draft Law on Environment Protection, ensures the regular flow of information through re-establishing current practice of an obligatory registration of all facilities and installations every second year for all activities that jeopardize or may jeopardize the environment. In addition to this, the draft law envisages establishment of the Federal and Cantonal Inspection for Environmental Protection with broad competencies, thus, through their regular activities enhancing the information flow from private sector to the public authorities.
There is also no explicit obligation from the law for any business activity to provide environmental information to the public. However, Article 49 of the draft law makes it compulsory for administrative bodies, as well as legal entities whose activities might have impact on the environment, to make all relevant data accessible to the public. Neither the Constitution nor the current Draft Law specifies the form of providing information, or determines the right of the public to specify the form in which information and/or environmental information has to be provided. In practice, if a response is provided by the authority in charge, it is usually in written form.
Refusal to Provide Information
Current legislation contains no provision whether and why the request for environmental information may be refused. It also does not contain the list of exemptions. However, the draft law establishes general public access to information without restrictions. (The only statutory exemption to this is Article 49, Paragraph 1 of the draft, which reads "the administrative bodies responsible for environment related activities, and the legal persons performing activities related to protection of environment, shall be obliged to ensure publicity of data and publicize them, unless a separate law prescribes the keeping of a state, military, official or business secret." With regard to public interest possibilities, it is important to emphasize that in Bosnia and Herzegovina, there is a domination of economical issues over any environmental considerations.
Informal Guidelines for Agencies and the Public
The current law has no provisions on general guidelines for public authorities how to provide information to the general public. However, the draft in Article 20 prescribes that "the Federal Ministry shall pass the directive on obligatory unified methodology for preparing and drafting environmental protection documents." Once adopted, the methodology shall encompass the guidelines for providing information. There are no general guidelines for public as well on how to request information and/or environmental information.
Specific Institutions/Officials to Provide Information
The Ministry of Information used to be a designated government institution for providing requested information in the former Socialist Republic of Bosnia and Herzegovina. Such ministry has not been established in the post-war Dayton Bosnia and Herzegovina neither on the state nor federal levels.
There is one recently formed government organization, based in Sarajevo Canton, called "Eko Policemen." As part of their regular activities is the "hot line" service which operates under the name "Eko Telephone." This telephone line includes a 24 hour service and citizens of Sarajevo Canton can request information related to any local environmental issues.
If an Authority Does Not Possess the Information
Legislation does not regulate the provision of environmental information. But in accordance with the Law on General Administrative Procedures (Official Gazette of the Federation of Bosnia and Herzegovina, No. 2/9), if any administrative authority receives a request which is not within its jurisdiction, and if it knows the authority in charge, the administrative authority is obliged to forward the request and immediately inform an interested party on such action.
Information Held in Public Registers
At the moment, there are no registers available to the public. The draft law proposes an obligation for establishment of such registers.
Costs of Obtaining Information
At present, there are no adequate facilities for obtaining copies on payment of costs of reproduction and dissemination, but charges are a minor obstacle to the general access to information.
An obligation of public authorities to collect, update and disseminate adequate environmental information is not determined by the current law. So far none public authority has informed public about possibilities of submitting information to international bodies concerning non-compliance with international rules.
Political, economic, and social information is now spread actively by the various federal and local institutions. There is no specific government institution or authority that is officially made responsible for providing environmental information to the public. As far as the obligation to actively disseminate information is concerned, the current law has no provisions to that effect. In cases of emergencies in the former Socialist Republic of Bosnia and Herzegovina there was a center for informing citizens in every municipality. A similar organ exists nowadays within the Center for Security Services (CSB), the equivalent of the local police.
Methods of Dissemination
The normal method used by public authorities for providing environmental information is usually through the news media. This is currently done more often through the press than through TV or radio broadcasting. Currently, the only example of an active provision of environmental information is broadcasting pollution levels in some municipalities.
Electronic Means of Dissemination
There are no obligations for any public authority to disseminate information on environmental issues electronically. The draft only mentions "the media" in general, without specifying which forms, (Article 49, Paragraph 5). This paragraph deals with potential extraordinary measures. There is also no environmental information available on Internet web sites as there are still no facilities for providing such details.
Nongovernmental Information Centers
The only relevant nongovernmental information center is the "BIHAMK" (Automobile and Touring Club), that occasionally provides information on levels of reduced visibility on roads due to smog, emergencies caused by accidents, etc.
The right to hold referenda is not given to the citizens in any of the current laws, including the constitution, as was the case in the Constitution of the former Socialist Republic of Bosnia and Herzegovina. However, on the municipal level, there is the possibility for an unspecified number of citizens to start the initiative and conduct a referendum on an issue of general importance to all the residents of the municipality. As an example, there was a referendum before the war in the municipality of Trnovo on whether to build a dam on the Bijela river for the nearby power plant. The results of the referendum were against the dam, and such a decision was made compulsory for the Ministry of Urban Planning and Environment. The Ministry never gave permission to the developer to start building the dam.
No single law or by-law specifically lists the cases when authorities are bound to call referenda. Although the current Law on Urban Planning does not clearly ensure a right to hold referenda, it establishes a specific procedure for public participation in the development of the Local Plan for Land Use. A mandatory part of this procedure is a "public dispute" on the proposed plan at the lowest local organizational level (usually consisting of citizens who live in the designated area). If the submitted plan is not approved by the local residents, permission for land use cannot be given. (For example, the Bacici district of the new Sarajevo municipality, voted against the plan proposed by the Sarajevo City Council in 1991).
Right to Initiative
Each individual having his/her residence on the territory of one Canton has a right to approach his/her MP in the Cantonal Parliament and ask the MP to sponsor the initiative on a certain issue. If the MP decides to sponsor the initiative, he/she can initiate the legislative procedure by asking for the proposal to be put on the parliamentary agenda. Depending on the form of the initiative (i.e. whether it is a new draft law, regulation, amendment of the existing regulation or a request for some form of the parliamentary decision), the relevant procedure is then applied. This means in theory that any individual can be the author of the regulation enforced on the local level. However, drafting legislation in practice remains with working groups, expert teams, government committees and the like that are formed by the Parliament. Private initiatives are usually reduced to the active interest taken by individual MPs.
However, there are provisions to enable such parties have their comments taken into account. On the national level, the public may obtain information about the legislative process through the mass media Also draft laws, before they are voted on by MPs, can be acquired from their sponsors (usually the concerned ministries), and all the alterations could be incorporated during the so-called "public dispute." Even in the old legal system, when the form of the draft was consolidated and determined by the government, there was the possibility (however seldom practiced) to send the draft to the Public Dispute.
That essentially meant that every form of citizen's association had the right to discuss the provisions of the law and pass the comments along to the next level of association, until it returns to parliament. This practice was used mainly for drafting federal laws, including the constitution. It is practically impossible to separate the public comments that were taken into account during the legislative process since there are no records of that kind.
Before the war, there was a rather strong Green Party that could be considered a formal group of citizens that was regularly informed on environmental issues by the government authorities. Nowadays, the activities of the party have subsided to such an extent that it could be said that there are now no formal or informal groups on the list being provided with the information on law and policymaking on a regular basis.
All parliamentary sessions are public, except for those that are pre-determined as closed, for reasons of national security or similar issues on the agenda. They are often broadcast live on television. Citizens are free to attend the session, if there is space in the room (the public gallery is normally filled with reporters and guests). This principle applies both at the national and local level. Their participation is limited to observer status.
However, the Constitution establishes the Human Rights Court and gives it broad jurisdiction in human rights protection issues. Chapter V, (Article 19) of the constitution reads: " Competencies of the Human Rights Court include protection of all rights guaranteed by the constitution and other legislation, that are related to violation of human rights and fundamental freedoms as well as any rights provided by the International conventions that are directly implemented on the territory of the Federation." (Conventions listed in the annex to the Constitution). There have been no recorded court cases on environmental issues for the past two years.
| TABLE 1: Administrative Standing | ||
|---|---|---|
| In the administrative decisionmaking process | In the administrative appeal of administrative decisionmaking process | |
Individuals |
||
| every person | - | - |
| interested/affected | - | X |
NGOs |
||
| everyone | - | - |
| interested/affected | - | X |
| TABLE 2: Legal Standing Against Government Agencies | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | - | - | - | - |
| interested/affected | - | X | -/X | X | X |
NGOs |
|||||
| everyone | - | - | - | - | - |
| interested/affected | - | X | -/X | X- | X |
| TABLE 3: Legal Standing Against Polluters | |||||
|---|---|---|---|---|---|
| Special administrative court | Civil court | Criminal court | Arbitration court or special economic courts | Constitutional court | |
Individuals |
|||||
| every person | - | - | - | - | - |
| interested/affected | - | X | -/X | X | X |
NGOs |
|||||
| everyone | - | - | - | - | - |
| interested/affected | - | X | -/X | X | X |
An effected individual or legal entity has the right to request an interim injunctive relief. However, whether the interim injunctive relief will be obtained or not depends on the relevance of the facts presented. A final decision is based on the ruling of the court.
