(13) International Environmental Law

International Environmental Law

A Basic Guide to International Environmental Legal Research

EL13

Compliance and Governance Mechanisms

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. 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.

No reporting, underreporting, or misreporting is, therefore, prevalent.

VERIFICATION AND COMPLIANCE

On-Site Inspections

On-site inspections by an international body to verify matters of compliance in areas under the jurisdiction of a state are rare, indeed, in international law. Inspections by the IAEA are the best known. The purpose of the IAEA inspections is to verify the conformance of nuclear reactors of states with international standards. However, even these inspections require that the IAEA enters into specific arrangements with the states concerned, and “surprise inspections” are not allowed.

With regard to pollution from various and diffuse sources of pollution, meaningful inspections, provided that are accepted by states as legitimate, do not seem to be feasible under the current structure of international law.

Formal Compliance Procedures

International environmental instruments are increasingly incorporating no adversarial Compliance Procedures (CPs).

Pursuant to article 8 of the Montreal Protocol, for example, parties to the ozone regime have established an Implementation Committee. The ozone implementation committee held about thirty meetings as of December 2003.

A compliance procedure has been adopted also under the UN/ECE Convention for Transboundary Air Pollution (CLRTAP). Although the convention itself does not provide for a compliance procedure, the 1991 and 1994 protocols specifically include such a procedure. A decision was made, therefore, to adopt a joint procedure that would apply to the convention and to the protocols simultaneously. Thus, a joint Implementation Committee has been established.

In 2002, parties to the 1998 Aarhus Convention adopted a compliance procedure in accordance with article 15 of the convention. What is interesting about this procedure is that members of the public can initiate the compliance proceedings under certain circumstances.

Under the UN/ECE EIA Convention, a compliance procedure has been adopted, despite the fact that the text of the convention does not provide for such a procedure. The procedure is being reviewed to incorporate provisions on public participation.

Under the Basel Convention, the first meeting of the Implementation Committee was held in October 2003. The compliance procedure under the Kyoto Protocol was finalized in 2001.

Furthermore, adoption of compliance procedures is being negotiated in other fora: the Biodiversity/Biosafety forum; the 1998 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides; the 2001 Stockholm Convention on Persistent Organic Pollutants; the 1996 Protocol to the London Dumping Convention; and the UN Watercourses Convention.

Other procedures that do not strictly qualify as noncompliance procedures (because there is not a specialized body to deal with noncompliance) are those adopted under the CITES and the Bern Convention for the Conservation of European Wildlife and Natural Habitats. The procedure established under the Bern Convention, for instance, provides that, when the secretariat of the convention comes across a case of noncompliance (e.g., through information provided by a party or an NGO), it first investigates the case. If it determines that action needs to be taken, it seeks further information from the party concerned. Following the response of the party, the secretariat decides whether to put the case before the COP meeting of the Bern Convention, which may have to undertake further action if needed.

Other procedures are geared more toward the initiation of a consultation process. Article 13 of the Climate Change Convention provides for a multilateral consultative process the purpose of which is to resolve questions of implementation of individual states rather than to pursue cases of noncompliance. State parties have to come to an agreement about the body that is to administer the multilateral consultative process.

In addition to the procedures included in international instruments, the UNEP and the ECE have adopted general guidelines on the compliance with and implementation of environmental agreements.

In general, compliance procedures do not serve the same function as dispute settlement arrangements.

• The function of a compliance procedure is to achieve uniform compliance with the provisions of an international treaty. Thus, the goal is to trigger erga omnes compliance from the violating state. By contrast, the purpose of a dispute settlement procedure is generally to resolve a dispute between two parties.

• The compliance procedure affects the future behavior of a noncompliant party. The purpose of a dispute settlement provision, on the contrary, is retroactive. Dispute settlement has to do with compensation and restitution of the harmed person.

• The compliance procedure is no adversarial. Although the dialogue between an Implementation Committee and a noncompliant party may become confrontational, it cannot be characterized as adversarial. The purpose of a compliance procedure is not to declare winners and losers but to find a common ground for the implementation of international legislation. Dispute settlement, on the contrary, is adversarial.

For compliance procedures to be viewed as legitimate some procedural requirements – namely transparency, fairness, predictability, and due process – have to be followed. Due process requirements include informing a party of a submission against it; allowing time for a response; allowing participation by the noncompliant party in the procedure; and providing for the scrutiny of information submitted against a party to determine its reliability.

Bodies that execute compliance procedures are usually appointed by the parties to a treaty. In some compliance procedures, it is emphasized that the individuals appointed are to serve “the common good” as understood under a specific treaty, rather than to accommodate the interests of the parties that appointed them. Another way to ensure the independent character of members of a compliance body is to lessen their dependence on state parties and to stress their expertise in the subject matter of the treaty.

In terms of who should be entitled to trigger a compliance procedure, current procedures offer a variety of alternatives, including the noncompliant party itself, another state party, the secretariat of a convention, the COP, or other treaty bodies. Compliance committees have a number of remedies at their disposal; these range from cautions/warnings and declarations of noncompliance to the adoption and application of a compulsory action plan that would address the implementation difficulties of a noncompliant state. Some procedures provide for the suspension of rights and privileges of the noncompliant party under the treaty in question, but the legal basis for the adoption of such an extreme measure is highly contested.

Nonforcible Countermeasures

As retaliation to an alleged contravention of an environmental obligation, states could adopt trade sanctions. Cases that have come before the WTO involve trade sanctions imposed unilaterally by states on other states because of an alleged violation of an environmental obligation. The WTO, as discussed in Chapter 9, has frowned on unilateral sanctions for the enforcement of conservation measures. The WTO has indicated, however, that multilateral trade sanctions may be viewed more favorably. Such multilateral trade sanctions are provided for in the Montreal Protocol against nonparties to the protocol or noncompliant state parties.

RIGHT TO INFORMATION AND PARTICIPATION AND ACCESS TO JUSTICE

International Instruments

The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters was adopted in 1998 and entered into force in 2001. The convention was adopted under the UN/ECE framework. The convention is the first international instrument that develops unequivocally the right of the public to access information, to participate in decision making, and to access justice. As such, the convention, despite all the exceptions that (if read expansively) could defeat its purpose, is considered a revolutionary instrument that recognizes in a practical manner a human right to a healthy environment.

Although the convention provides for the right to a healthy environment, it is not the only instrument to acknowledge such a right. Many other instruments implicitly or explicitly have done so in the past. The convention, however, went many steps further than usually expected for international environmental law instruments by providing the procedures through which the right to information and participation can be materialized.

States as a general rule are reluctant to provide information either because they do not conceive it to be their function to do so or because they are weary about the consequences of the provision of too much information on their power to control the electorate. Thus, the right to information appears to increase the transparency and openness of government structures, as it allows citizens to have access to information at states’ disposal. At the same time, however, this seemingly democratic right empowers states because it legitimizes their role as collectors and organizers of information. This role can be taken advantage of in the collection of private information. The right to access information, the right to participation in decision making, and the right to access to justice have been called the three pillars of the convention.

Before analyzing the articles of the convention, one has to clarify the definition of public authorities against which the information and participation rights can be asserted. The definition of public authority is quite inclusive and comprises what traditionally could be considered public authorities and “natural or legal persons having public responsibilities or functions, or providing public services, in relation to the environment under the control of ” a traditional public authority. This includes government-created or government-financed corporations that perform public functions. In the United Kingdom, for instance, public functions are performed by private companies. Such private companies, because they perform public functions, fall under the scope of the convention. “Environmental information,” as defined under the convention, is also quite inclusive.

The convention is explicit that persons, organizations, or groups that exercise their rights under the convention:

• Must be recognized and supported;

• Shall in no way be penalized, persecuted, or harassed for their involvement; and

• Shall have access to rights established under the convention without discrimination as to citizenship, nationality, or domicile.

The convention supports what has been called active and passive access to information. Passive access to information has to do with the right of public to gain access to information at its request. Active access to information speaks of a government’s duty to collect and disseminate information on its own initiative.

To provide access to information, information must be collected. The state, according to the convention, has a central role in the collection and dissemination of environmental information. Public authorities not only must possess and update environmental information but also must establish systems to ensure the adequate flow of information. Public authorities must disseminate information to the public in the event of an imminent threat to human health and the environment so as to prevent and mitigate harm coming from the threat. If information is available but it is still hard to obtain, the purpose of the convention will be defeated. Effective access to information can be accomplished by a variety of means: publicly accessible lists, registers and files, positive official support, and the identification of points of contact. States are required to ensure that all information becomes available in electronic databases easily accessible through public telecommunications networks. States are required to establish a coherent, nationwide, and publicly accessible database – compiled through standardized reporting. States also are required to publish facts that affect major environmental issues and to make accessible relevant explanatory material.

The requirement not only to provide information but also to organize it so that it can be effectively accessed is the innovative element of the convention. The goal is for pollution inventories to contain information on discharges and emissions of each and every polluter so that the public acquires full knowledge and could name and shame polluters. The wide publication of noncompliance – which could undermine corporate reputations – is what policy makers are relying on to foster implementation. However, as mentioned earlier, the right to information, despite its democratic credentials, could become an intimidating tool in the hands of states. States absorbed in their now legitimate role as collectors and organizers of information may be willing to collect all kinds of information based on various public interest objectives. The convention provides explicitly that authorities must respond to requests of information “within the framework of national legislation” with copies of actual documentation141 without requiring the public to demonstrate an interest and in the form that the public requested. The convention provides explicitly that information requested must be provided within a month after a request has been received.

There are broadly formulated exceptions, however:

• The one-month deadline can be extended to two months when the volume and complexity of information justify such an extension;

• The information can be provided in a different form than that requested by the public.

The request also can be refused if:

• It is manifestly unreasonable or formulated in too general a manner;

• It concerns material in the course of completion or internal communications of public authorities when such an exception is provided by national law or customary rights;

• It violates the confidentiality of proceedings of public authorities;

• It adversely affects international relations, national defense, or public security;

• It hampers the ability to receive a fair trial or criminal/disciplinary proceedings;

• It adversely affects the confidentiality of commercial and industrial information or other legitimate economic interest including intellectual property rights with the exception of information on emissions;

• It corrupts the confidentiality of personal data where such confidentiality is provided for in national legislation;

• The interests of a third party would be affected and that party has not consented to the release of the information.

The sheer number and indefinite character of many of these exceptions could undermine seriously the purpose of the convention. Therefore, the text of the convention provides for grounds for refusal, which must be interpreted strictly by performing a cost-benefit analysis between the public interest served by the disclosure and the interest protected by nondisclosure. Refusal must be in writing if the applicant requests it; this must state the reasons for denying information and must be provided within a month or, for complex requests, within two months after the request has been submitted. The refusal must contain information on the process of appeal.

A public authority that does not possess a certain kind of information must refer an applicant to another authority. Parties can charge for supplying information, but the charges are not meant to deter access to information.

Right to Participation

One of the first instruments that refers to a right to participation is the UN/ECE Convention on Environmental Impact Assessment. The convention explicitly states that the assessment of proposed activities likely to have an environmental impact should take place with the participation of the public.

The Aarhus Convention establishes three types of participation:

• Public participation in decisions on specific activities, here called specific public participation;

• Public participation concerning plans, programs, and policies relating to the environment, here called general public participation;

• And public participation in the preparation of executive regulations and of legally binding instruments, here called normative public participation.

The general themes that run through these types of participation include:

• Reasonable time frames – that public participation procedures should allow sufficient time to inform the public and for the public to prepare and participate effectively;

• Early in the process – that public participation should occur early in the process when all options are still open;

• Accounting for results – that the state must take into account the results of public participation.

For specific participation, the activities to which this type of participation applies are listed in the Annex to the convention, but it is provided that other activities could be included that may have significant environmental impact in accordance with national law.The public must receive notice early in the process in an adequate, timely, and effective manner. This means that just posting a notice in any public medium is not adequate and effective if the public concerned does not have access to the medium or the information is buried under all other sorts of information.

Individual notice also may be necessary, according to the circumstances. The convention provides that, for a notice to be effective, it must include inter alia the proposed activity, the nature of possible decisions and draft decisions, and the public authority responsible for making decisions. The notice also should include information about the participation procedure itself – namely, when the procedure starts; the opportunities for the public to participate; the time and venue; and an indication of the type of environmental information already available. The public authority must enable the public to participate by providing all information useful for decision making. This includes the site and physical and technical characteristics of the proposed activity, the effects of the activity on the environment, the measures envisaged to prevent and to reduce adverse effects, an outline of the main alternatives, and a nontechnical summary. In other words, for the countries that have adopted the EIA Convention, this convention specifically requires authorities to provide the public with documentation potentially included in an EIA.

General public participation in plans and programs also is authorized under the convention, but the provision is broader than the provision for specific participation. It is provided, however, that participation in plans and programs must take place under “a transparent and fair framework,” which indicates that, at least, participation must be effective. The requirement for public participation in plans and programs links this convention to the SEA Convention that provides for the environmental assessment of plans and programs. The convention becomes even more laconic with regard to participation in environmental policies.

Regarding normative participation, it is underlined that the public should be given the opportunity to comment either directly or through representative consulting bodies on the preparation of executive regulations and legally binding instruments. Draft rules should be published and be available publicly

Access to Justice

Access to justice is provided for in the convention when the request for information has been refused wrongfully, when it has been ignored, or when it has been answered inadequately. Under these circumstances, the convention provides that the public should have access to a review procedure before a court or an independent and impartial body. The procedure provided for must be free of charge or inexpensive. Certain countries have decided to create independent and impartial bodies to review access to information cases. For instance, France has established the Commission for Access to Administrative Documents. Most countries also have administrative appeal processes that are usually free of charge. The convention provides that those who have standing to bring access to information complaints must either have sufficient interest or maintain that their rights have been impaired. For the purposes of the convention, NGOs are deemed to have sufficient interest and deemed to have rights capable of being impaired.

An interesting facet of the access to justice provisions is that they are not only available for procedural and substantive violations of the access to information rights but also for any violation of national environmental law. Access to justice should provide adequate and effective remedies – including injunctive relief – that must be equitable and timely. Moreover, judicial decisions must be in writing and must be publicly accessible.

Other Provisions

The governing body of the Aarhus Convention is the Meeting of the Parties that takes place every two to three years. In the meantime, working groups are to elaborate on the different aspects of the convention. The parties to the convention have established a compliance committee. The compliance committee reviews cases of noncompliance through submissions by parties, referrals by the secretariat of the convention, or communications from the public. The compliance committee cannot engage in enforcement but has to report to the Meeting of the Parties on its findings. The Meeting of the Parties may take measures against a state that has breached its obligations under the convention that range from assistance and cautions to the suspension of privileges accorded under the convention.

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