(14) International Environmental Law

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UNECE-Guidance on Implementation of the Protocol released in English and Russian

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2003 Kiev Protocol

The Aarhus Convention was supplemented in 2003 by the Kiev Protocol on Pollutant Release and Transfer Register. The objective of the protocol is to improve access to information through the establishment of coherent, nationwide pollutant release and transfer registers (PRTRs) in state parties to the protocol. The PRTRs are to be facility-specific with respect to reporting on point sources; could accommodate reporting on diffuse sources; are pollutant-or waste-specific as appropriate; and must distinguish among releases to air, land, and water. Furthermore, PRTRs are developed based on periodic mandatory reporting; must include standardized and timely data; and must be coherent, user-friendly, and publicly accessible (this includes electronic formats). PRTRs are supposed to be structured, computerized databases or several linked databases maintained by a competent authority.

The Kiev Protocol requires reporting on a wide range of activities and pollutants (eighty-six pollutants are covered under the protocol). Thus, although the Kiev Protocol does not regulate pollution per se, it is expected that, though a “name and shame” the polluter rationale, it would be able to exert pressure for the reduction of pollutants. Although the protocol has been adopted under the UN/ECE framework, it is open to all states for signature. By December 2003, thirty-six states had signed the protocol, including the European Community (EC).

Application of Right to Information

The issue of the content and amount of information that a state is required to provide under modern access to information requirements came under scrutiny in the OSPAR case examined by the Permanent Court of Arbitration. The facts of the case are as follows.

British Nuclear Fuels (BNFL), a company owned by the United Kingdom, operates a nuclear reprocessing plant in Sellafield. In 1993, BNFL applied to a local authority to build a Mixed Oxide Fuel (MOX) plant to reprocess fuel used in nuclear reactors. The license to build the plant was given in 1994 and the construction was completed in 1996. Ireland challenged the construction of the plant, claiming that the plant would pollute the Irish sea with radioactive waste and pointing out the dangers presented by the transfers of radioactive material (to be shipped in and out of the plant).

Before bringing the case to the Permanent Court of Arbitration, Ireland attempted to bring the case before the ITLOS with no success. Both the United Kingdom and Ireland are members of the European Union (EU) and, thus, the case potentially could be brought before the European Court of Justice. In addition, under article 37 of the Euratom Treaty – of which both the United Kingdom and Ireland are signatories – it is provided that members must provide the European Commission of the EU with their plans to dispose of radioactive waste and that the European Commission must deliver its opinion within six months. Based on this provision, the United Kingdom had submitted its MOX construction plans to the European Commission, which concluded that: the implementation of the plan for the disposal of radioactive wastes arising from the operation of the BNFL Sellafield mixed oxide fuel plant, both in normal operation and in the event of an accident of the type and magnitude considered in the general data, is not liable to result in radioactive contamination, significant from the point of view of health, of the water, soil or air space of another Member State.

Furthermore, the government of Ireland had participated in the public consultation procedures regarding the operation of the plant. During these procedures, Ireland opposed the operation of the plant on the grounds that it would perpetuate the nuclear fuel reprocessing industry in Britain. In addition, Ireland charged that potential discharges from the plant in the Irish Sea were objectionable and unacceptable. Further consultations were followed because there were concerns that the BNFL did not provide the public with sufficient commercial information that would justify the commissioning and the operation of the plant. The BNFL consulted with independent firms about the information that should be submitted to the public domain and information that could be withheld because it would involve giving up its competitive advantage; or because the release of information would breach safeguards and security requirements with regard to the location, quantities, and movements of plutonium.

The parties agreed to bring the case before the Permanent Court of Arbitration (PCA) based on the right to information requirements included in the OSPAR Convention. According to Ireland, article 9 of the OSPAR Convention provides it with the right to be informed on the following matters:

  • Estimated annual production capacity at the MOX facility;
  • Time taken to reach that capacity;
  • Sales volumes;
  • Probability of achieving higher sales volumes;
  • Probability of being able to win contracts for recycling fuel in “significant quantities;”
  • Estimated sales demand;
  • Percentage of plutonium already on site;
  • Maximum throughput figures;
  • Lifespan of MOX facility;
  • Number of employees;
  • Price of MOX fuel;
  • The number of contracts, if any, to purchase mixed oxide fuel from Sellafield;
  •  Arrangements to transport plutonium to Shellafield and mixed oxide fuel from Sellafield;
  • The number of transfers of plutonium and mixed oxide fuel to and from Sellafield.

The tribunal had to examine the following questions:

1. Whether article 9(1) of the OSPAR Convention provides for an obligation of the United Kingdom to disclose the information requested by Ireland;

2. Whether the information requested by Ireland was within the scope of definition of information provided for in article 9(2) of the OSPAR Convention;

3. If the information requested by Ireland was indeed within the scope of article 9 whether any of the exceptions included in article 9(3)(d) applied. Article 9(3)(d) of the OSPAR Convention provides that a party may refuse to provide information of “commercial and industrial confidentiality, including intellectual property.”

The tribunal first examined whether the United Kingdom’s obligation to provide Ireland with information was derived directly from article 9(1). Article 9(1) provides:

The Contracting Parties shall ensure that their competent authorities are required to make available the information described in paragraph 2 of this Article to any natural or legal person, in response to any reasonable request, without that person’s having to prove an interest, without unreasonable charges, as soon as possible and at the latest within two months.

According to the United Kingdom, article 9(1) provided for the obligation of states to establish regulations on the provision of information. The merits of an application for information were to be determined, thus, by U.K. municipal law. Ireland argued, on the other hand, that the United Kingdom’s obligation derived directly from article 9(1) and, thus, the tribunal had the jurisdiction to decide on the merits of the United Kingdom’s refusal to provide information. The tribunal agreed with Ireland. According to the tribunal, article 9(1) “is pitched at a level that imposes an obligation of result rather than merely to provide access to a domestic regime which is directed at obtaining the required result” and concluded that the United Kingdom was under an obligation to provide information.

The tribunal went on to examine whether the information requested by Ireland was under the purview of article 9(2).

The tribunal clarified that article 9(2) identified information as:

• Any available information on the state of the maritime area;

• Any available information on activities or measures adversely affecting or likely to affect the maritime area;

• Any available information on activities or measures introduced in accordance with the convention.

The tribunal disagreed with the Ireland that article 9(2) involves the release of all environmental information. The tribunal added that even if article 9(2) was interpreted to require the disclosure of all environmental information, the information requested by Ireland was not of the environmental type but more of the type of information on “economic justification.” The tribunal noted that article 9(2) was carefully crafted to include information on measures likely to have adverse effects on the maritime area and not on all measures.

Furthermore, the tribunal rejected Ireland’s claim that it had the authority to apply “evolving international law and practice.” Ireland had cited the decision of the ICJ in the Gabˇc´ıkovo-Nagymaros case, in which the Court stated: new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Such new norms have to be taken into consideration, and such new standards given proper weight, not only when States contemplate new activities but also when continuing with activities begun in the past.

The tribunal disagreed with Ireland that this passage from the Gabˇc´ıkovo-Nagymaros case gave it authority to apply law in statu nascendi that is still evolving rather than established law. The tribunal, furthermore, did not take into account the right to information as elaborated in the Aarhus Convention. The Aarhus Convention entered into force after the tribunal heard oral arguments. Neither the United Kingdom nor Ireland had ratified the convention at the time of the proceedings.

The tribunal balked at a broad interpretation of right to information requirements as articulated in various international instruments. It would be interesting to see how international law on the provision of information would evolve now that the Aarhus Convention has been ratified and new instruments are added that include access to information provisions. The tribunal was right to distinguish that for the right to information in environmental matters to function, a balance must be maintained between the interest of the public to know and the interests of states or companies that wish to keep commercial information confidential. As what is commercially important - and, thus, better kept confidential - and what the public must know may often intersect, this would, indeed, be a difficult balance to keep.

The multiple compliance and governance mechanisms analyzed in this chapter serve a number of functions including that of prevention of damage (EIAs and SEAs, notification requirements), monitoring (through accumulation of data, exchange of information and reporting), and enforcement (compliance procedures). The adoption of environmental instruments and methods that apply across environmental issues and economic sectors provides evidence of the increased sophistication of international institutions in handling environmental matters. Compliance and governance mechanisms provide a network of options to states regarding the implementation of environmental law. Overall, the provision of information under a “name, help, and, as a last resort, shame” a polluting state rationale is expected to produce more results than strict enforcement devices. In the information age, the most potent enforcement device may be the dissemination and use of information.

Permanent Court of Arbitration: https://pca-cpa.org/en/home/

UNECE – Environment Policy: http://www.unece.org/env/welcome

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