(12) International Environmental Law

Center for International Environmental Law (Video)

International Society for environmental Information Sciences

IEL

Compliance and Governance Mechanisms

STATE OBLIGATIONS

Exchange of information, prior notification, consultation, and informed consent are considered the “staples” of many international treaties. States do not hesitate to inject these procedural requirements into international agreements. These requirements are so frequently used that one could claim that they have become rules of customary international law. Other commentators argue, however, that, although states have been involved in many notification and consultation procedures, most of this involvement results from a specific treaty requirement rather than from a belief in the existence of a general rule of customary international law requiring notification and consultation. According to the same commentators, except for the requirement to notify and to consult in emergency situations, which could be considered a customary international rule, there is no general customary notification and consultation rule in international environmental law.

There many reasons why states may be hesitant to exchange information, to notify another country, or to consult with another country. States may be engaging in dangerous activities, and the discovery of this by other states could trigger claims of state liability or responsibility. Some activities of states or private operators located in their territory may constitute trade secrets, the revelation of which could compromise the comparative advantage of states. Information on how to monitor or best address an environmental problem could involve the exchange of commercially valuable knowledge. In other cases, the revelation of an environmental accident could adversely affect the reputation of states. For all these reasons, it seems that states have an inherent interest in hiding rather than in divulging information, let alone notifying other states about the true content of the information in their possession.

In some cases, states may be more willing to reveal information, for instance, in cooperative situations in which none of the parties is perceived to hold privileged information, when the revelation of information may have positive reputation effects, or when information may assist in putting together alliances against a third state.

Exchange of information also is preferred in regions in which countries have resolved to engage in collaborative efforts to address common environmental problems. Thus, in order to determine whether the exchange of information, notification, and consultation requirements is emerging as rules of customary international law, one has to make some comparisons. One needs to pinpoint circumstances under which states have revealed information, even if this is not strictly required under a treaty, versus circumstances under which they did not. Because there is no knowledge on how many potential notifications states have missed – for example, when it would have been a good idea to notify – it is hard to determine how frequently notification and consultation are followed as a customary rule of international environmental law.

It must be noted, however, that some developments, for example, the general progress in technology (e.g., the information technology, or Vessel Monitoring Systems), and developments specific to the international environmental field, including:

• The right to information, participation in decision making, and access to justice convention;

• The establishment of joined monitoring systems; and

• The transparency that is necessary for the proper functioning of some environmental instruments, indicate that more information is available in the international system with the assistance of or in spite of the resistance of states.

Exchange of Information

Exchange of information is a routine form of cooperation among states. Many treaties have provided as a matter of course for exchange of information. The UN/ECE Convention on Transboundary Air Pollution (CLRTAP) includes many articles on the exchange of information. Article 8 of the convention more specifically provides that states must exchange information on emissions and major changes in national policies and technologies for reducing transboundary air pollution. Similar provisions for exchange of information are included in the protocols to the convention.

The EMEP monitoring system under the CLRTAP has been instrumental in supplying parties with information about emissions and compliance by other parties. Other instruments that provide for the provision and exchange of information include the Stockholm Declaration, the Rio Declaration, Agenda 21, the Basel Convention, the 1986 IAEA Notification Convention, the UNCLOS, the Vienna Convention for the Protection of Ozone Layer, and the Montreal Protocol for the Protection of the Ozone Layer.

The Montreal Protocol is quite detailed regarding the exchange of information. State parties must exchange information on the best technologies for improving the containment, destruction, and recycling of ozone-depleting substances (ODS); on the possible alternatives to ODS; and on the costs and benefits of various control strategies. Such exchange of information could be quite extensive, and it may involve patents and trade secrets that could be viewed as a competitive advantage of certain states. Companies usually are reluctant to release this type of information to other countries and competing companies. Because of the difficulties of enforcing the exchange of information on new technologies, the Climate Change Convention is less demanding in this respect. The convention, therefore, cannot be interpreted as forcing the release of confidential private information.

The Convention on Biological Diversity urges the parties to transfer technology, and the knowledge associated with it, especially to developing countries. This provision has not been well received by companies in the developed world, which are more concerned with preserving their intellectual property rights rather than with transferring technology and the knowledge associated with it. Overall provisions for exchange of information play a pivotal role in international environmental law. Accumulating credible information can discourage states from flouting international conventions and could alert other states about potential issues of noncompliance.

Notification

One way to obtain information is through notification by a state of origin of transboundary environmental issue. The EIA Convention requires the state of origin to notify the state affected. The EIA Convention goes as far as to require the response of the affected state within the time frame set in the notification. The duty of states of origin of polluting activities to notify states that may be affected is included in many treaties. The UN/ECE Convention on Transboundary Air Pollution provides for notification.67 Many bilateral treaties on air pollution and nuclear installations provide for an obligation to notify. A number of bilateral treaties on nuclear installations contain detailed provisions on notification and the supply of information with regard to the construction, maintenance, and operation of nuclear installations, especially those that are close to frontier areas.

A number of international instruments include the obligation to notify in emergency situations. The 1986 IAEA Notification Convention69 provides for early notification in case of a nuclear accident. The treaty was adopted after the Chernobyl accident, when the then Soviet Union failed to notify affected states promptly.

This treaty places on the state of origin of a nuclear accident the duty to notify all affected states. The notifying state must respond to requests from affected states for further information and consultations.70 The IAEA Convention has some limitations because it applies in cases of accidents that pose actual or potential risk of transboundary radioactive contamination. The convention applies to accidents of “radiological safety significance” but does not apply to accidents that may occur in military nuclear installations.

The duty of notification in emergency situations or when a country is to engage in an activity likely to have transboundary environmental impacts is provided in a number of other instruments, such as the Rio Declaration, the UNCLOS,  the Basel Convention, the Biodiversity Convention, and the 1997 UN Watercourses Convention. The 1997 UN Watercourses Convention provides for a detailed notification procedure. A state that is to undertake measures that would affect a shared watercourse must notify the affected state and wait six months for a reply. During this period, the notifying state is not to put into effect any measures that would affect the shared watercourse. The convention provides for the reply to the notification as well as the course of action to be taken in cases in which notification is not given or there is no reply to the notification.

Consultation

Consultation is the natural extension of notification. The EIA Convention provides for the obligation of a state of origin to consult with an affected state after the notification is given. It must be noted that the requirement of consultation does not give a veto power to an affected state with regard to an activity planned by a state of origin. But an obligation to consultation means that, at least, the comments of affected states are taken into account in the planning of a project. Otherwise, the obligation for consultation would be an empty requirement.

The duty of notification and consultation can be found in early cases of international environmental law, for example, the Lac Lanoux arbitration. In the Lac Lanoux case, the tribunal concluded that France had the duty to notify and to consult with Spain with regard to works planned on Lake Lanoux but that such consultations did not give Spain the right to veto France’s decisions. The duty of consultation is implied in the Fisheries Jurisdiction cases in which the ICJ concluded that a state that contemplates to extend its fisheries zone is to take the interests of affected states into consideration. This duty can be realized through consultations.

Other international conventions that provide for the duty of consultation include the UN/ECE Transboundary Air Pollution Convention and several bilateral treaties on nuclear installations.The COPs of most conventions constitute fora for the exchange of information and consultation of state parties to a convention.

The obligation to conduct consultations is also provided in the IAEA Notification Convention, the Ramsar Convention, and the UNCLOS. Principle 17 of the Rio Declaration provides for the requirement of consultation.

Some more recent conventions provide, in addition to notification/consultation, for the prior informed consent of the notified party. This requirement could be considered a “consultation-plus” procedure, in which the affected party has, in effect, the power to veto the activity of the originating party. For instance, with regard to the transfers of hazardous wastes, in order for a state party to the Basel Convention to transfer wastes to another country, it must obtain the prior informed consent of that country. If the importing country refuses to consent to the waste shipment, the shipment cannot take place, at least not legally. The prior informed consent requirement is included in the Rotterdam Convention on Prior Informed Consent (PIC) Procedure for Certain Hazardous Chemicals in International Trade. Even more elaborate consultation requirements are included in the 2000 Biosafety Protocol, in which it is provided that, for a transboundary transfer of living modified organisms to take place, the PIC of the importing country is required in addition to an Advance Informed Agreement (AIA) procedure.

Reporting/Monitoring

Data gathering is a prerequisite to lawmaking. Without data, one cannot get a concrete understanding of the nature and extent of environmental problems and, thus, cannot devise institutional means for addressing those problems. Accurate data have been an important precondition for the successful conclusion of regional water treaties. The absence of accurate data on the state of fisheries resources has marred international and regional fisheries management regimes.

Because of the importance of data for the proper functioning of international law, many treaties provide as a task of states to gather various types of information on issues that a treaty deals with and to report back to the treaty institutions, usually the COPs, through secretariats. Most international environmental regimes provide for the requirement of reporting. However, the record of compliance with reporting requirements is not always stellar. Reporting requirements are taken seriously in the International Labor Organization (ILO), but compliance with reporting is fair to poor in most environmental treaties. Reporting is quite problematic under many human rights instruments.

Some conventions require state parties to report on their performance with respect to standards established under these conventions. Other conventions require parties to report on future plans and programs to meet treaty goals. Yet other conventions require reporting in order to feed information databases established under the convention. Several international institutions have established monitoring bodies. The purpose of these bodies is to collect information on the state of environment. The UN/ECE Convention on Transboundary Air Pollution has established a monitoring program, called EMEP, which has played an important role in air quality control in Europe.

Most international environmental treaties provide for reporting/monitoring requirements more or less explicitly. Such conventions include the UNCLOS, the 1997 UN Watercourses Convention, the Vienna Convention for the Protection of the Ozone Layer, the Climate Change Convention, the Biodiversity Convention, the MARPOL Convention, and the 1995 Fisheries Agreement.

Frequently, the subject matter of a treaty dictates the content of reporting. Certain treaties request parties to report on their emissions or discharges or to provide the inventories of their natural resources.95 Other treaties concentrate on the violations of a convention by persons under the jurisdiction of states. Still other conventions ask states to report on measures they have undertaken to comply with the convention.

The problem with periodic reporting requirements is that they are rarely accompanied by an independent evaluation of the reports. States provide reports on the overall measures they have undertaken to address an environmental problem, but rarely do they provide information to enable a third party to determine whether these measures have been sufficient. Also, most treaties do not provide for independent evaluators who would examine reports provided by states and explore potential discrepancies. Most reporting requirements do not specify the content of reports and fail to provide for a uniform reporting format.

Some of the most recent conventions provide for more extensive reporting requirements. For instance, the Climate Change Convention provides that state parties must provide a national inventory of emissions of greenhouse gases and of the removal of greenhouse gases by sinks using comparable methodologies. Developed countries are to provide a detailed description of policies and measures they have undertaken to address greenhouse emissions. Information designated by a party as confidential, however, should be treated by the secretariat as confidential, thereby removing possible fears of state parties regarding the release of sensitive information.

The Kyoto Protocol, as further implemented, may provide for a most structured reporting procedure. Most compliance procedures provided for in international environmental treaties today recognize the review of compliance of a state’s reporting requirements, as one of their explicit functions.103 However, it has been noted that the requirements of reporting included in most international instruments often overwhelm the capacities of national bureaucracies to respond with adequate and meaningful reports. Nonreporting, underreporting, or misreporting are, therefore, prevalent.

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