Post-Doctoral Researcher, Faculty of Law, Economics and Finance, University of Luxembourg, Luxembourg
VI. THE RIGHT OF ACCESS TO INFORMATION
As for information on water-related matters, it has already been emphasized that by providing pertinent documentation, non-state actors can impact on the triggering of the Committee initiatives, as well as on its decisions. Of equal importance is the recognition of the public’s right of access to information, which enhances the capacity of national and local civil society to focus the political agenda on the implementation of water conventions. Once the public is informed of the status of the domestic implementation of environmental treaties, civil society may exert significant pressure towards greater compliance on the State concerned through campaigns, lobbying and legal proceedings. Access to information is, therefore, a prerequisite for public participation.
As to the nature of the obligations stemming from the provisions on the right of access to information, the UNECE Water Convention provides a general obligation to the effect that ‘information shall be made available to the public’.47 With regard to the type of information concerned, it mentions: the condition of transboundary waters;
the measures taken or planned to be taken in relation to transboundary impact, as well as the effectiveness of those measures, including water quality objectives; permits issued and the conditions required to be met; and
40 UN Doc. ECE/MP.WAT/2012/L.4, Appendix I, para. 37.
41 Ibid., para. 38.
42 Ibid., para. 39.
43 Ibid., para. 40.
44 A. Tanzi, C. Pitea, ‘Emerging Trends in the role of Non-State Actors’, supra, n. 2, p. 277.
45 UN Doc. ECE/MP.WAT/2012/L.4, Appendix I, para. 31.
46 UN Doc. ECE/MP.WAT/2012/L.4, Appendix II, paras. 26-30.
47 Art. 16, para. 1 of the UNECE Water Convention.
results and evaluation of water sampling.48 As for the time limit for responding to a request for information, the UNECE Water Convention provides for a reasonable time standard.49
Under the Decision establishing the Implementation Committee, access to information is equally guaranteed with regard to the activities of the Committee. As for confidentiality, in fact, it is provided that ‘no information held by the Committee shall be kept confidential’, except for any information that has been provided in confidence. It appears that the latter principle should be given a restrictive interpretation.50 Namely, access to information is generally guaranteed with respect to all documents related to the Committee’s activities, such as the Committee reports to the Meeting of the Parties,51 the provisional agenda and meeting report, essential information concerning any request for advice, submission or Committee initiative, decisions and recommendations of the Committee and any related decisions of the Meeting of the Parties.52 While Committee documents are usually to be made available to the public through the Convention web site,53 the sole exception to the lack of confidentiality is documentation related to discussion papers prepared by the secretariat or by members of the Committee.54
Public access to information would nonetheless be further enhanced by the establishment of a reporting system under the UNECE Water Convention. As is known, despite the heterogeneous nature of the non-compliance mechanisms, their common feature is that committees are in charge of two activities, namely, consideration of submissions by the Parties and a general monitoring function on the basis of periodical reports submitted by States. Under the UNECE Water Convention and its related instruments, such a monitoring function based on periodical reports is currently not foreseen. Nevertheless, during its First Meeting, the Implementation Committee examined the need for reporting under the Convention, as the Working Group on Integrated Water Resources Management, in consultation with the Implementation Committee, was mandated to carry out such analysis, whose possible outcome would be submitted for adoption by the Meeting of the Parties at its seventh session. The Committee emphasized that a reporting mechanism would contribute to an improved level of implementation by identifying gaps as well as providing a basis for evaluating the effectiveness of the Convention and for the exchange of experience between Parties.55 In its Second Meeting, the Committee reaffirmed that, despite the existence of reporting systems under various international agreements in the water sector, an appropriate, tailor-made reporting mechanism would be an asset for both the Parties in implementing the Convention and the Committee in carrying out its functions.56
Finally, the Decision setting up the Committee under consideration also provides that meetings of the Committee should be in principle open to the public, unless the body decides otherwise.57 A Committee meeting is held in private only when findings and measures are prepared and adopted as well as when this body finds it necessary to ensure confidentiality of information. The presence of observers is, therefore, generally allowed, subject to registration with the secretariat no later than two weeks before the meeting they wish to attend.58
48 Ibid.
49 Art. 16, para. 2 of the UNECE Water Convention.
50 UN Doc. ECE/MP.WAT/2012/L.4, Appendix I, paras. 32-34.
51 Ibid., para. 44.
52 UN Doc. ECE/MP.WAT/2012/L.4, Appendix II, paras. 22, 24-25.
53 Ibid.
54 UN Doc. ECE/MP.WAT/2012/L.4, Appendix II, para. 23.
55 UN Doc. ECE/MP.WAT/IC/2013/2, paras. 13-15.
56 UN Doc. ECE/MP.WAT/IC/2013/4, paras. 10-12.
57 UN Doc. ECE/MP.WAT/2012/L.4, Appendix I, para. 35. On compliance mechanisms operating in a non-transparent manner, see V. Koester, T. Young, ‘Compliance with Environmental Conventions: the Role of Public Involvement’, Environmental Policy and Law, vol. 37/5, 2007, pp. 399-401, who criticize the usual argument in favour of secrecy, according to which the cases of non-compliance involve politically sensitive issues.
58 UN Doc. ECE/MP.WAT/2012/L.4, Appendix II, paras. 18-21. The Second Meeting of the Implementation Committee was attended by three observers (see UN Doc. ECE/MP.WAT/IC/2013/4, para. 2). On the different participation status between observers and members of the general public before the Aarhus Convention bodies, see C. Pitea, ‘The Legal Status of NGOs in Environmental Non-Compliance Procedures’, supra, n. 5, pp. 189-190.
VII. CONCLUSION
An innovative trend within the UNECE framework may be detected consisting of the formal recognition of direct access to compliance procedures for the public. In this respect, the Compliance Committees of the Aarhus Convention and of the Protocol on Water and Health are the most relevant examples, thanks to the primarily domestic scope of the instruments establishing them. Although the Implementation Committee of the UNECE Water Convention does not formally recognize the role of non-State actors in the context of compliance and implementation procedures, civil society can still participate in them, acquiring a potentially relevant status. Indeed, as has been stressed throughout the present paper, the public can enhance the implementation procedures in several ways. By providing information to the Implementation Committee, the public can potentially impact on both the Committee initiative and its decision-making, while through the right of access to information on the Committee’s activities, it can participate in the monitoring of implementation and compliance with the UNECE Water Convention. In the future, this aspect could further be enhanced through a reporting mechanism if adopted.
Finally, although it is too early to predict the impact of public participation on the Implementation Committee for the management of water resources, it should also be recalled that the Helsinki Water Convention, adopted within the framework of the UNECE and ratified by 39 Parties (38 States and the European Union),59 has a potentially global membership as it is also open to non-UNECE members.60 The implications of public participation under this water instrument could, therefore, go beyond the pan-European region.
FURTHER READING
Lammers, J.G., ‘The Helsinki Water Convention: A New Implementation Mechanism and Committee’, Environmental Policy and Law, vol. 44/1-2, 2014, pp.117-124.
Tanzi, A., Contartese, C., ‘Dispute Prevention, Dispute Settlement and Implementation Facilitation in International Water Law: The Added Value of the Establishment of an Implementation Mechanism under the Water Convention’, in A. Tanzi, O. McIntyre, A. Kolliopoulos, A. Rieu-Clarke (eds.), The UNECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes: Its Contribution to International Water Cooperation, Brill, The Hague (forthcoming).
Vykhryst, S., ‘Public Information and Participation under the Water Convention’, in A. Tanzi, O. Mcintyre, A. Kolliopoulos, A. Rieu-Clarke (eds.), The UNECE Convention On The Protection And Use Of Transboundary Watercourses And International Lakes: Its Contribution To International Water Cooperation, Brill, The Hague (forthcoming).
59 For the status of ratification, see the United Nations Treaty Collection web site, available at https://treaties.un.org/Pages/
ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-5&chapter=27&lang=en#1.
60 On the amendments that allow the accession by non-UNECE countries, see M. Fitzmaurice, P. Merkouris, ‘Scope of the Convention’, in A. Tanzi, O. McIntyre, A. Kolliopoulos, A. Rieu-Clarke (eds.), The UNECE Convention on the Protection, supra, n. 6, and I.
Trombitcaia, S. Koeppel, ‘Evolving Participation to the Convention—The 2003 Amendment on Accession of non-UNECE States:
from a Regional Towards a Global Instrument’, in ibid.