Book Chapter
Reference
Transparency, Public Participation and Amicus Curiae in Water Disputes
MBENGUE, Makane Moïse, TIGNINO, Mara
MBENGUE, Makane Moïse, TIGNINO, Mara. Transparency, Public Participation and Amicus Curiae in Water Disputes. In: Brown Weiss, Edith, Boisson De Chazournes, Laurence and Bernasconi-Osterwalder, Nathalie. Fresh water and international economic law . Oxford : Oxford University Press, 2005. p. 367-405
Available at:
http://archive-ouverte.unige.ch/unige:4745
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15
Transparency~ Public
P articipation~ and Amicus Curiae in Water Disputes
MAKANE MoïsE MBENGUE and MARA TIGNINO
1. INTRODUCTION
Public participation confers a new standing to the rights and duties of indivi- duals in intecnationallaw.1 It challenges established boundaries and concepts of law by cutting across distinctions and dichocomies, such as national versus in- tematÎonallaw, private versus public law, and prÎvate versus public interests?
Public participation ilSe!f
reflects the increased concem of internationallaw with issues once thought to be part of a state's domaine réservé, such as public participation, transparency, legal procedure, public administration, secrecy, and the very notion of democracy itself-that is, issues the regulation of which usually is considered to be one of the essential attributes of state sovereignry. J
A deep analysis of the notion of public participation shows ilS polyrnorphous and hybrid nature. From one point of view, public pacricipation can be inter- preted as a general category. In this sense, public participation should be con- sidered, lato sensu, as a philosophy, an approach in the management of natural resources, shared or not, as well as an archetype in international, national, and local decision-rn.king. Consequently it can also he regarded as a mode! of
1 A. Cassese, INTERNATIONAL LAW (2001), at 81 ('[T)hat, smctly spcak.ing, theu' is nothing to prevenc States from providing in intemational rules for international obligations incwn~m "pon individuals and corresponding rights accruing to them, in the international field. What matters is the intention of che lawmakers:)
l See J. Ebbesson, The Notion of Public Participation in International EnuÎronmental Law, YEARBOOIC OF INTERNATIONAL ENVIRONMENTAL LAW, 8 (1997), at 55. See also, B. Conforti, INTERNATIONAL LAw AND THE ROH OF DOMESTIC LEGAL SYSTEMS (1993), ar 125-6. The Con- vention on Access tO Information, Public Participation in Decision-Making and Access to Justice in Environmental Manees, 25 June 1998, 38 l.L.M. 517 (1999) (hereinafter the Aarhus Convention), e.g., more or less precisely, defines the 'Iegal position' of private persons-Iheir rights, duties, and competences rhat are to be provided for in nationallaw. Thus, while formal1y addressed to States, these international norms are ultimately directed at individuals through the intermediary of national
institutions. J J. Ebbesson, supra note 2, at 55.
368 Makane Moise Mbengue and Mara Tignino
international governance. In (his context, public participation is an operative and interactive notion, whîch inciudes the concepts of transparency, access to justice, and public participation stricto sensu. Public participation stricto sensu or peT se should be regarded as a procedural issue which affords non-Stare acrors, to participate actively in decision~rnaking processes concerning naturai resources. Whereas public participation lato sensu involves States4 and noo- Stare actoIs through the framework of transnational participatÎon,s public participation stricto sensu is limited rD the involvemem of non-Stace actors.6 This chapter focuses mainly on this las! issue.
Before analysing the relationship between public participation and water issues, it seerns interesting to point out sorne cornerstones of its history in in- ternational environmentallaw. The road to transparency and public.farticipa- tion in international and regional instruments has been long, and it is ,ill under construction. While public participation and 'access to justice' in envi(onmental maners became an issue in dornestic discourse and law in the 1970s~7 it took arrother fifteen to twenry years for the topie to attain equal attention in inter- nationallaw and poliey. This is not ta say that the issue was entiIe1y neglected in the international eomext until the 1990s;' in 1972, this topie was addressed by
" In international law procedures such as notification, prior informed consenr and advance in- formed agreement 3.re based on access to information and participation between States. See, e.g., Convention for the Protecrion of the Marine F.nvironment of the North·East Atlantic (OSPAR Convention), Paris, 22 September 1992, available at http://www.ospar.orgl; Prior Informed Consent Procedure (Rotterdam Convention), 10 September 1998, 38 I.L.M. (1999 •• ae 1; Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 29 January 2000, enrered ioto force on Il September 2003, 391.L.M. (2000), at 1027; United Nations Convention on the Non-Navigational Uses of International Watercourses. 21 May 1997, U.N. Doc. NRESI511869, 36 l.L.M. (1997), at 700. On the question of public participation hem'een States, see Dispute CO'fceming Access to Information Under Article 9 of the OSPAR Convention (Ire/and versus United Kingdom of Great Britain and Northem Iretond), Pennanent Court of Arbitration, Award of 2 July 2003.
5 On the question see E. Benvenisti, CAMBRIDCE SruDIES IN INTERNATIONAL AND COMPARATIVE
LAw, SHARJNG TRANSBOUNDARY REsOURCES: INTERNATIONAL LAw AND OPTIMAL RESOURCE USE, 43-63 (2002).
6 Th~ Rio Dt:dararion specifically mentions wOIO~n (Principle 20), youth (Principl~ 21), and in- digenous people and other local communities (Prindple 22). Agenda 21, in its section 3 fStrength- ening the role of major groups), gees further to includ~ workers, trade unions, business and industry, the scientific community, and farmers among the enumerated groups, and induded among the :lC-
tivities aimed at strengthening their role, promoting freedom of association and strengthening par- ticipation and consultation. See a/so infra, the definition of the term 'public' in many public participation-related conventions.
7 N_ Wengert, Citizen Participation: Practice in Search of a Theory, 16 NAT. RESOURCES J.
23 (1976); K. Raustiala, The Participatory Revolution in International Environmental Law, 21
HARYARD ENV!litONMENTAL LAw REVIEW, 1997, at 537; L. P. Breckenridge, Ncmprofit Envirm,- mental Organizations and the Restructuring of lmtitutioru for Ecosystem Management, 25 EcoWGY L.Q., a{ 692.
S See, e.g., 1966 International Covenant on Civil and Political Rights, adopred by (he United Nations General Assembly in New York on 16 Dccember 1996. Its Art. 19 deals with the '&eedom to seek, receive and impart înfonnation.' See a/sa 1980 Salzburg Declaration on the Protection of the Right of Information and of Participation, adopted at the Second European Conference on the En- vironment and Human Rights at Salzburg (Austtia) on 3 December 1980; 1981 Council of Europe Recommendation N°(81) 19 of the Committee of Ministers to memher Stares on the access to infonnation held b)' public authorities, adopted at Strasbourg (France) on 25 No\'ember 1981.
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Transparency, Public Participation, and Amicus Curiae 369 the international community at the Stockholm Conference on the Human Environment.9
Three main international documents can be see;n as the landmark texts in relation to what could be defined proprio motu as the internationallaw of public participation: two of them are 'soft law' instruments and one i5 a convenrional text. The st3cting point of the international law of public participation is the 1982 Wocld Charter for Nature adopted by the UN Genetal Assembly.'o
The Rio Declaration on EnvÎ.ronment and Development can be considered as the 'catalyseur' text concerning the international ]aw of public participation.
Indeed, in 1992, more than 150 States agreed at the Rio Conference on Envir~ ( onment and Development IUNCED) that '[e)nvironmental issues are best han- dled with the participation of ail concerned citizens, at the relevant level'.
Principle
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was significant as a c1ear global expression of the developing con~cept of public participation in relation to the envirol1JTlcm.l l More spccifically, Chapter 18 of Agenda 21 of the UNCED caUs for actÎve public participation in shared freshwater manag~ment, 12 which includes Dot only the prOVISion of a cight of hearing ta DE.pose J:!.a~.!~~~,c.oul.~ ~e detrimental,_~C?_ ce~.!.~ .i~.~ividuals~/
or gro-üps;-but,mOrc generally, requires States io:"aiffi:-f?c '<ln approach of full pu1gc partICIpation,
inclmtifi1fth:acofw6Ïnè~, · Y.o:Ûih; indig~nou~ 'pe~ple
and local communities inwoomanagement
PoJ~çy-making-and-decision-making,13 ands"l.lggests-the '"developmenr of public I,articipacory techniques and their im- plemenr3tion in decision-making'.14Although the States' practice in public participation issues is not yer weil established, the Aarhus Convention15 'crystalJizes' the materialization of a branch of international law devoted to public participation through the con- solidation of an emerging opinio ;uris.16 An opinio ;uris constiruting the
9 The 1972 Action Plan for the Human Environment, Recommendation 7(a). In differenc res~cts, public participation Îs alsa referred ta in Recommendatians 39(a) and 97. In addition tO that, Prin- ciple 19 oE (he 1972 Stockholm Declaration recogni2eS the nced Eor improving education and public awareness in the field of the environment. Report of ,he United Nations Conference on the Human Environment, UN doc. NCONF/48f14/Rev. 1, 11 1.L.M., (1972) ac 1416.
10 Set! the World Charter for Nature, UN/GA 37(7 (1982), paras 16, 23, and 24.
Il Within Principle 10, three pillars are addressed intemationally: access to infonnarion, public participation, and access tO judicial and administrative proceedings.
12 See E. Hey, Sustainable Use of Shared Water Resources: The Need for a Paradigmatic Shift in Intemational Watercourses Law, in THE PEACEFUL MANAGEMENT OF TRANSBOUNDARY REsOURCES,
1331Gerald H. Blake et al. eds, 1995). 13 Agenda 21, Principle 18.9(c).
t. Agenda 21, Principle 18.12(n). 15 Supra nOte 2.
16 According to Kon Annan, 'Although regional in scope, the signjllcance of the Aarhus Con- vention is global. It 1S by far the most Împressive e1aboration of principle 10 of the Rio Declaration, which stresses the neoo for citiun's participation in environmental issues and for access co in- formation on the environment held by public authorities. As such ie is the most ambitious venture in the area of "environmental democracy" sa far undertaken under the auspices of the United Nations' (available al http://www.unece.orglenvJpp/). The idea of an emerging opinio iuris is exemplined, aner the adoption of the Aarhus Convention, by several texts which recognize the righr of public parti- cipation. See, e.g., 1999 Water and Health Protocol to the UNJECE Convention on the Protection and Use of International WarercQurses and Transboundary Lakes; 2003 Protocol on Pollotant Release and Transft.r Registers co the Aarhus Convention; 2003 Protocol on StrategÎC Environmental Assessment
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370 Makane Moise Mbengue and Mara Tignino
foundation of the internationallaw of public participation and characterized- ex ante-by the access to information and-ex post-by the access to justice is not a utopia. In order to preve this, it is sufficient to decipher and analyse the panoply of environmental treaties which set out norms on information, parti- cipation, and access to court at the domestic level.17 Public participation is at the crossroads of the protection and the management of the environment. Warer issues are intrinsically and extrinsically linked to the protection of the envir- onment.18 As a result, water issues fall under the ratione and the problematics of public participation. Several reasons explain why water issues request a public participation approach. Given the often transboundary nature of water resources and their diverse uses, several actors, such as governments, intergov- ernmental organizations, and non-governmental organizations (N~Os), are involved in water-related activities and in any disputes that arise. Decisions involving natural resources in general, and water in particular, increasfngly have an international dimension. Often several States, international organizations, and/or multinational corporations are involved in the decision-ma king process and, consequently, also in any disputes that arise. In particular, the involvement of multilateral organizations has led to water management attaining global dimensions, especially in developing countries, where organizations such as the World Bank and regional development banks are involved in water-related projects. Specifie activities, plans, or policies regarding water issues are likely to cause transboundary effects, which give rise to a public interest in both States
to the Convention on Environmentallmpact Assessment in a Transboundary Comexr, available at http://www.unece.orgl.SeeDissentingOpinionofGavanGriffithin the Dispute Concerning Article 9 of the OSPAR Convention (lreland\UK), Final Award, Permanent Court of Arbitration, The Hague, 2 July 2003, at 70, para. 12: ' ... certain provisions of the Aarhus Convention may be recognized as reflecting or codifying customary practice and general principles of internationallaw that are binding on the Parties [to the OSPAR Convention] .. .'
17 Several conventions on civilliability, relating to nudear accidents, marine pollution from ships, and other dangerous activities, provide rules on standing and jurisdiction that are to be implemented in domestic laws. Other treaties foresee the establishment of procedures for public participation, either in general rerms or in more specifie terms related to environmental impact assessment, to measures for the prevention of, and preparedness for, industrial accidents, and ta the formulation of certain programs and policies. See, e.g., Convention on Third Party Liability in the Field of Nuclear Energy, 29 July 1969, 956 U.N.T.S., at 251, as amended 28 January 1964, 956 U.N.T.S., at 325;
Vienna Convention on Civil Liability for Nudear Damage, 21 May 1963, 2 l.L.M. (1963), at 727;
International Convention on Civil Liability for Oil Pollution Damage, 29 November 1969, 9 l.L.M.
(1970), at 46; International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea, 6 May 1996, 35 l.L.M. (1996), at 1406; 1991 UN/ECE Convention on Environmental Impact Assessment in a Transboundary Context [hereinafter the Espoo Convention], 25 February 1991, 30 I.L.M. (1991), at 800; Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution concerning the Control of Emission of Volatile Organic Compounds or their Transboundary Fluxes, 18 November 1991, 31 l.L.M.
(1992), at 568; United Nations Framework Convention on Climate Change (UNFCC), 31 l.L.M.
(1992), at 1330.
18 Severa] definitions of the meaning of 'environment' indude water resources. The Aarhus Con- vention lists examples ta iIlustrate what is meant by 'elements of the environ ment'. These elements in this non-exhaustive list include 'air and atmosphere', 'water', 'soil, land, landscape and natural sites', and 'biological diversity and its components, including genetically modified organisms'.
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Transparency, Public Participation, and Amieus Curiae 371 involved.19 This means that whenever individuals or NGOs in the Stare where the activity takes place can pursue public, environmental interests, the same options must be available ta individuals and NGOs.based in neighboring States that wish to pursue public interests in regard to the activity.
Public participation and access to information (as specifie tools for trans- parency) are matrix vectors for the avoidance of water disputes. ln particular, they eosure consensus berween multiple stakeholders in relation to water-related projects, avoiding-and even annihilating-emerging warer disputes. As such, they operate in a priori Jogie to prevent the arising of water disputes. ln case of waret disputes, public participation and transparency must still be provided for.
Water law disputes have been singled out as a category in which non~State
intervention representing a public interest conceen is most needecl. In order to expia in the role of non-Stare actors in designing and implementing international warer law, two factors have tO he considered: the development of the concept of 'community Înterest', and the recognition of inclividual, group, and collective rights. In this regard, policy-makers increasingly recognized the 'global dimen- sion' in the use, management, protection, and conservation of freshwater resources. Moreover, ir should be observed that water-related problems prim- arily affect individuals and group of individuals at the locaiievel.20
In reeent years, many NGOs have claimed that the rights of citizens and dvil society have heen infringed br GATT/WTO rules and regional trade agreements such as NAFfA.21 Indeed, the increasing ramifications of imernational nade are nor concerned primarily with tariff reduction and the like, but extend more deeply ioto rhe ioner workings of the Stare. Consequently, groups have been demanding increased access ta and participation in wro and NAFfA functions to ensure the representation of a1l interests. The skepticism of many is'-arguably heightened by the confidentiality of the WTo"s and NAFT A's dispute setdement mechanisms. In this comext, NGOs of many types have requested the right ta submit amicus curiae briefs ta
wro
22 and NAFT A dispute settlement bodies.The issue of whether the WTû and regional trade agreements are open and transparent is not limited to NGOs and public participation in the dispute set- tlement mechanisms. The issue of transparency is 31so about increased access to documents and greater public participation in WTO or NArrA meetings. One
19 M. T. Ponte Iglesias, Les accords conclus par les aulodlés loenles de différents fÛlls sur {'uti- lisation des eaux transfrontalières dans le cadre de la coopération transfrontalière, 2 $cHWl;IZ,ERISCHE ZEITSCHRIFT FUER INTERNATIONAt..ES UND EUROPAEISCHES RECHT 103 (1995).
20 A. Tanzi & C. Pitea, 'Emerging Trends in [he Role of Non-S,ale Acmrs in International Waler Disputes', in Resolution of Intenuzrional Water Disputes (Peace Palace Papers, Kluwcr Law lnrer- national, 2003) at 259-60.
21 North American Free Trade Agreement between the governments of Canada, Mexico, and United States, 1 January 1994, reprinted in 32 [.L.M (1993), a[ 289, al50 available at: hnp://www.
worldtradela w .net/nafta/index. hrm.
22 See L. Boisson de Chazournes & M. M. Mbengue, The Amici Curiae and the WTO Dispute Seulement System: The DOO($ are Open, 2 THE LAW AND PRACTICE OF INTERNATIONAL COURTS AND TRIBUNALS 205-48 (2003}.
372 Makane Moise Mbengue and Mara Tignino
central argument supporting NGOs' participation in WTO and NAFf A mattees is the Iole that NGOs can play in disseminating information at the nationallevel.
Leaving asicle considerations about the legitimacy of NGOs' daims for greater transparency and further public participation in the WTO and NAFfA, our purpose is to discuss the actions that these institutions have taken to increase transparency and openness. The paper draws attention to the practice of \VfO panels and othec international fora, such as the NAFf A and ICSID, in relation to involvement of non-parties through the use of witnesses and experts as weIl as of amici briefs. In this context, it is important to observe that when NGOs are allowed to act as witnesses or as an amicus curiae, they do not gain standing per se but may participate at the discretion of the tribunal. Vnder the P~rmanent
Court of Arbitration Optional Rules for Arbitration of Disputes rel~ting to Natural Resourees and/or the Environment (hereinafter PCA Enviro-pmental Rules)" and the 2000 Southern African Development Community Protocol on Tribunal and Rules'of Procedures Thereof24 (2000 SADC Protocol on the Tri- bunal), non-State actors have a locus standi before international tribunats. Thus, private parties have an aceess to justice and they may take advantage of the PCA Environmental Rules and of the SADC Tribunal as parties to a dispute, When private parties have no locus standi before dispute settlement bodies, tribunals may accept the submission of amici briefs. Although not parties to a dispute, through the submission of amici briefs, non-State actors may express their coneerns on the issues submitted to the tribunals. Therefore, the receipt of amici briefs strengthens the notions of public participation and transparency in dispute settlement mechanisms.
This chapter will focus fust on issues of transparency and public participation as means of water-disputes avoidance. Public participation and access ta in- formation play an essential raie in the avoidance of water disputes. This raie is recognized in severa! conventional texts, such as the Aarhus Convention and the Senegal Water Charter.25 The aim of the first section will be to show that the concept of public participation is dynamic. Effective public participation in the taking of decisions enables the public to express, and the decision-maker ta take account of, opinions and concerns which may be relevant to those decisions.
Thus, contributing to public awareness of environ mental issues, it increases the accountability and the transparency of the decision-making process.
In its second section, this chapter will turn ta the settlement of water disputes with special focus on international trade law. This section will point out the
23 PCA Environmental Rules, adopted 19 June 2001, reprinted in YEARBOOK OF INTERNATIONAL LAW ARBITRATlON, p. 425 (2001 J, also available at www.pca-cpa.orglEDRJENRrules.htm.
24 Southern African Development Community Protocol on Tribunal and Rules of Procedures Thereof, Windhoek, 7 August 2000, Arts 15(1},(3) and 18. SADC documents available at www.sadc.int.
2S Organisation pOut la Mise en Valeur du Fleuve Sénégal, OMVS, Charte des Eaux du Fleuve Sénégal, 18 May 2002. Text available at www.lexana.org (only French version available).
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TransparencYJ Public Participatioll, and Amicus Curiae 373 actions that the WTO and the NAFT A have caken with the aim ro Încrease rheir rransparency and openness. Two issues will be particularly addressed: the role of amici brjefs as roeans of public participation before.dispute settlement bodies;
and the issue of transparency in arbitration proceedings. Amici briefs and access to information on the tribunal proceedings are essential in order to ensure public participation and transparency in the settlerncnt of warer disputes.
Lastly, the chapter will highlight the role of compliance mechanisms estab- lished by international Einancial organizations 5uch as the World Bank, the Asian Development Bank, and the Inter-American Developmenr Bank. These mechanisms constitute a new vehicle of public participation in water disputes.
Indeed, they provide the intended beneficiaries of banks' projects with a new cool of participation. Under chese mechanisms, non-State actors can file requests against projects financed by these tinancial institutions.26 Thus, non-Stare accors have the opportunity to participate in the formulation and implementation of banks' projects.
2, WATER-DISPUTES AVO[DANCE: ISSUES OF TRANSPARENCY AND PUBLIC PARTICIPATION
One of the fundamental prerequisites for the achievement of sustainable developmenr is broad public participation in decision-ma king. Furthermore, in the more specifie context of environment and development, rhe need for new forms of participation has emerged, This Îndudes the need of individuals. groups and organizations ta participate in envir- onmenral impact assessment procedures and ta know about and participate in decisions, particularly those that patentially affect the eommunities in which chey live and work.
Individuals, groups and organizations should have 3ecess to information relevant ta envir- onment and development held by national authorities, including information on producrs and accivities thar have or are likely [0 have significanr impact on Ihe environment, and information on environmental protecrion measures,27
This profession of faith, expressed by the Agenda 21, underscores the import- ance of public participation and access to information in the field of the man- agement of natural resources such as water. It also affirms the interaction and the inter-changeability between these two notions,
A pracrical benefit of public participation and access to information in water issues is the enhancement of the quality and implementation of decisions.2B The quality of decisions can be improved by the public's provision of additionaI information, as weil as through the influence that advocacy of alternative
26 See also, P. Cullet & A. Gowlland·Gualtieri's chapter in this book.
27 Agenda 21, Chapter 23,23.2.
28 See Economie Commission for Europe, The Aarhus Convention: An Implementation Guide, United Nations, New York and Geneva, 2000, ln the preamble ra the Aarhus Convention, the Parties recognize thar, in the field of the environment, access tO information and public participation in decision-making 'enhances the quality and the implemenratÎon of decisions'.
374 Makane Moise Mbengue and Mara Tignino
solutions can have on the careful consideration of possible solutions. Members of the public will often have a special knowledge of local conditions and of the practical implications of proposed activities. The implernentation of decisions can be improved when the members of the public who are mast interested in the result have been included in the process and have had their conceros considered.
In such cases, their support can be expected [Q increase,29 restrictÎng che prob- abiliry of possible dispules. The public and authorities ohen have a common inrerest in achieving an optimal result for the good of society, although there might be disagreement as to the means or as CO the balancing of imerests. The active involvement of the public in a transparent decision-making process confirms the accountabilitlO of the public authorities, and increases respect for them and for rheir decisions, even among those members of the public who have had to suffer a loss as a result of the final decision. ln the ';.1sence of such accountabiliry, members of the public who may be adversely aft{cted by a decision will think the worst, and assume that rhe public authoriry has been corrupted by special Îmeresrs. In this contexr, disputes can he expecred.31
Public participation and aceess to information play an esscntial role in the avoidance of water disputes. This role is recognized in several conventional rexts, such as the Senegal Water Charter.32 In particular, its Article 2 states that one of the objectives of the Charter is to specify how private parties will be able
to participate in the management of the river. Through the Permanent Water Commission (Commission Permanente des Eaux, PWC), NGOs, representatives of local communities, and private usees are involved in decision-making con- eerning the allocation of water to various use secrors, as weil as in the decisions regarding projects and measures planned in Member States33. Therefore, the PWC increases the involvement of representatives of various stakeholders in the resouree management decision-ma king process.
With the aim CO avoid water disputes, access to information on water~related
activities and effective participation in me ca king of decisions are indispensable.
Both means are necessary for the avoidance of water disputes.
29 Ninth preambular paragraph of the Aarhus Convention, supra note 2.
30 See, on the concept of'accountability', 1. F. 1. Shihata, THE WORLD BANK INSPECTION PANEL: IN PRACfICE, 2nd edn (2000) at 237-40.
31 Tenth preambular paragraph of the Aarhus Convention, supra note 2.
32 Supra note 25.
33 Under Art. 23 of the Charter, NGOs and representatives of local communities (also at district level), 3S weil as as private users, attend the meetings of the PWC as observers. According to this prO\'ision, the decisions coneeming the staru:~ of absen·er are taken by the Couneil of Ministers. In light of Art. 19, the mos[ important task of the PWC is ta establîsh prineiples and madalities in the allocation of watet ta various use sec:tors. In accordance wirh Art. 26, the PWC is entirled ta advise the Couneil of Minisrers whethet ptojects and measures planned in Member States are consistent with the organizarion's objectives. ln partieular, whether they may have an adverse effect upon, inter aUa, human health or watet quality (Art. 10 of the Charter specifies the projects submitted ta the regime of prior authorization). Several articles of the Chaner tefer to the rights of the individuals in relation ta over the utilization of the SenegaL
the Senegal watet: Art. 4 establishes the rights of the riparian States, as weil as those of the individuals 1
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Trallsparency, Public Participation, and Amicus Curiae 375 2.1 Access to information on water-related activities
Access tO information and transparency are c10sely linked. T ransparency means [har the public can clea.rly foUow the path of envirorimental information, under- standing its origin, the criteria chat govem its collectÎon, holding, and dissemina- [Îon, and how it can he obtained.34 Water Îssues fall under the scope of environmental information.35 Indeed, environmental information36 includes any information relating ta the stafe of the elements of the environment.37 Environ- mental information may be in any material fonn, which specifically includes weitten, visual, aurai, and electronic form.38 Thus, paper documents, phorographs, illustrations, video and audio recordings, as weil as computer files, are aU examples of the form the information can take.39 Access to information for specific warer issues can he expressly provided for in certain instruments.40 By analogy, referring ro the definition of environmental information mentioned in the European Dir- ective on public access toenvironmental information,41 one may consider, in short, that 'water-related environmental information' could be defined as
any information in written, visual, aurai, eJectronic or any other material forrn on:
(a) the srare of warer and the interaction among warer and other elements of the environment such as air and annosphere. soiJ, land, landscape;
(b) faccors, such as substances, energy, noise, radiation or wasce, including radioactive waste, emissions, discharges and other releases inco the water, aHecting or likely 10
affect waterj
.
14 The Aarhus Convention: An Implementation Guide, supra note 28, at 5-6.
3S The den.nition of environmental informatÎon is of central importance tO Art. 4 on access to environmental infonnation and Art. 5 on the collection and dissemil1ation of environmental information of the Aarhus Convention. See, e.g., Dispute Concernhtg Article 9 of the OSPAR ConuefJt;on (ire/alldJUK), supra note 4.
36 Some environmental rrearies prescribe the use of environmenral information as 'best environ- mental practice'. Sec, e.g., Convention on the Protection of the Marine Environment of the Baltic Sea Area, Arts 3 and 6 and Annex llô OSPAR Convention, Art. 3, Annex 1 and Appendix 1; UNIECE Convention on the Protection and Use of International Watercourses and Transhoundary Lakes, Helsinki, 17 March 1992, Art. 3 and Annex Il.
37 See, e.g., Oireccive 2OO3/4/EC of the European Parliamem and of the Couneil of 28 January 2003 on public access to environ mental information and repealing Coundl Directive 90/313/EEC, Official Journal of the European Union, L 41/26 (14 February 2003), para. 10. See a/sa the Aarhus Convention.
3B The Aarhus Convention makes reference ta infonnation technology in Art. 2(3) (information in e1ecnonic Eonn) and in Art. S(3} (accessible e1ectronic data bases) and (9) (srruct\.lred, computerized, and publicly accessible database), supra note 2.
39 lt is also important tO distinguish between documents and information. E.g., the Aarhus Con- vention guarantees <lccess tO information. The 'material fotm' language is not meant ta restrict the definition of environmemal information ra finished products or otherdocumentation as that ma}' be formally understood. Information in raw and unprocessed foem is obrainable as weil as documents, see The Aarhus Con/lention: An Implementation Guide, supra note 28, ar 54.
4{1 See, e.g., Protocol on Pollutant Release and Transfer Registers, which provides for access to information in the field of specifie water issues, supra note 16.
41 Directive 2003f4IEC of the European Parliament and of the Couneil of 28 January 2003 on puhlic access tO environmencal information and repealing Couneil Directive 90/313/EEC, supra note 37, Arr.l!1).
376 Makatle Moise Mbengue and Mara TignùJO
(e) measures (including administrative measures). 5uch as policies, legislation, plans, programs, warer (or environmental) agreements, and activities affecting or Iikely to affect watef and factors referred to in (b) as weil as measures or activities designed to proteet wareT;
(cl) reports on the implementation of wateT (or environmental) legislacioo;
(e) cost-benefit and othec economic analyses and assumptions used wichin the framework of the measuces and activities referced lO in (e).
While the States enjoy disccetion in choosing the means of distributing the information, the Aarhus Convention specifies cenain elements that must be part of the information provided.42 These elements include, for example, the names of the companies involved in the activity, comprehensible explanations of the hazardous activities concerned, descriptions of the substances used and their properties, precautionary measures taken, and contingency plans ad~~ted. The Aarhus Convention does not establish an}' minimum or mandatory e~ments to be included in the system; it provides only that such a system 'may' include information on inputs, releases, and transfers of substances and products from a specifie range of activities to environmental media and so on:13
Access to information in this context grants a right to know which is extensible.44 This right to know, or this right of access to information, implies a double-faceted obligation: on the one hand it is characterizcd by a vertical relation State/non~State actors; on the other hand it also establishes a horizontal relation non-Stace actor/non~State actor. Conceming the first relation, there is an obligation on the part of rhe State to colleet and make available the informa- tion,45 and also an obligation on the part of the opera tors of patentially harmful activities to transmit relevant information about their activities to the competent authorities.46 With the relation non~State actor/non-State acror, operators have the obligation to make information available ro the public regarding their activities.47
42 See, e.g., Convelltion on Tcansboundary EHeccs of Industrial Accidents, Helsinki, 17 March 1992, 311.L.M. (1992) 1330, Annex VIII.
HArt. 5(9) of the Aarhus Convention, supra nOie 2.
44 P. H. Sands, Information Disclosure as an Instrument of Enu;ronmental Covernance, 63 Zeitschcift fur ausHindisches ôffentliches Recht und Vôlkerrecht 487 (2003). See also, J.Ebbesson, supra note 2, at 89: 'From states, international obligations with respect ta environmental information may indude the collection of information and ÎtS dissemination eirner to other states or to non-state actors ... From the perspective of indivicluals and othee non-state actors, access to relevant infor- mation is a concern not ooly when new harmEul operations are examined or when existing petmits are reviewed; it also comprises continuous access for citizens ta accurate information on the state of the environment.'
45 A comprehensive right-to-know implies an obligation for each State tO provide user-friendly systems whereby individuals may seek specified environmentaJ information. See, e.g., Protocol on paUmant release and transfer registers, supra nOte 40. Art. 4.
46 See Protocol on pollutant release and cransfer regisrers, Art. 7. States may encourage opecators
10 disseminate information on the environmental impacts of rheir actÎvitÎes and products through voluntary systems like eco-labelling and eco-auditing (see, Art. 5(6) of the Aarhus Convention).
47 lt concerns the flo ... of information from an 'operator' directly to the public. An 'operator' can he a private enterprise or a governmental body mat conducts activities with a significant impact on the environment.
TranspaTency, Public Participation, and Amicus Curiae 377 One fundamental problem in the field of environmental information about water issues is that it can challenge the confidentiality characterizing trade and commercial activÎtÎes.48 Especially from the side o( private comparues, several issues can be often raised, snch as, inter alia, that the information required may allow or assist competitors to build market share or to benchmark their own operations, or allow customers or competitors to understand the specifie cco- nomics and processes of the fabrication of an item. Stil1 more complex is the ropic of the distincrion betwccn the issues pertaining ex facie to the environ- mental information and the questions which are stricto sensu related to the rra de information. The recent dispute eoncerning Article 9 of the OSPAR Convention exemplifies this complexity. 49
This being said, public authorities are not allowed in general to impose any condition for supplying information that requires the applicant to state the reason why he or she wants the information, or how he or she intends ta use it. Requests cannot be rejected because the applicant does not have an inrerest in the infor~
marion. Public authorities may refuse a requesr for information that they do not
~hold,50 or that is 'manifesdy unreasonable'. They may also refuse ta disclose marerials 'in the course of completion', or mate rials 'concerning internai commun- ications', but only when nationallaw or cusromary practice exemplS such mate- rials.51 If access to information is denied, the aurhoriry in question must make its decision within a short period of time, stating the reasons for the refusal. Of im- portance then, although it does nat necessarily ensure access to the information, is the right to legal review and appeal to a court.52 As already pointed out:
... (he right ta information means thar the disclosure of information should he the general rule and mat public authorities should be permitted to refuse a request for enviroomemal information in specifie and c1early defined cases. Grounds for refusaI should be inter- preted in a restIÎctive way, whereby the public interest served br disclosure should he weighed against the interest served hl' the refusaI. S3
ln order to avoid wacer disputes, access to information must be complemented by effective public participation in the taking of decisions_ The concept of public
48 See, e.g., Ecopravo-Lviv v. 8rodyvodocanal (case n·4/2436-31/97), cired in Handbook on Access ta Justice under the Aorhus ûmvention. edited by Stephen Stee, Hungary, March 2003, al 205-206_
.. ~ Dispute Concerning Access ta Information ImdeT Article 9 of the OSPAR Convention (Ireland!
UK), supra nore 4.
SO One cou Id distinguish berween 'information held by a public authority' (environmental information in its possession which has been produced or received by that aurhority) and 'information held for a public authority' (environmental information which is physicall)' held by a natural or legal persan on behaL( of a public authority). Directive 2003/4/EC of the European Parliament and of the Couneil of 28 January 2003 on public access ta environmentaJ information and repealing Couneil Directive 90/313/EEC, Art. 2(3) and (4).
Sl Quoted from The Aarhus Convention: An Implementation Guide, supra nOte 28, at 56-9. Orher exceptions ta access ro information are provided for in Art. 4(4) of the Aarhus Convention.
S2 See Art. 9(1) of the Aarhus Convention.
53 Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Couneil Directi\'e 90/313/EEC, para. 16.
378 Makane Moise Mbengue and Mara Tignino
participation is dynamic.54 Effective public participation in the taking of deci- sions enables the public to express, and the decisiollRmaker to take aCCQunt of, opinions and concerns which may be relevant to thase decisions. Thus, COTI-
tributing to public awareness of environmental issues, it increases the aCCQunt-
ability and the transparency of the decision-making process.55 2.2 Public participation per se in water-related decisions
In light of the Aarhus Convention and othec international instruments on public participation and environmentai impact assessments (EIAs), sorne preliminary e1ements can be identified as the traits of participatory processes. According to
Jonas Ebbesson:
.1
. __ first, the process should provide a true opportunity for the public to ~e part in decision-making, offering it a possibility to influence the outcome. Second, it should reflect a broad understanding of who may act ta proteet the 'public interests'-the pee- mise being chat not ooly governmental and administrative institutions should do 50.
Third, the decision-making process, as weil as the follow-up monitoring of any imple- mentation measures, should he transparent and open. Fourth, the public at large should have access to environmental information. Fifth, it should allow for legal review and the right to appea1.56
How ta ensure that a participatory process is not merely 'pro forma,?57 In othee words, how can it be ensured that public participation influences de facto and in abstracto decisian-making in water issues? The Aarhus Convention, for example, sets out several means for enhancing the impact of participation as 'carly public participation', and the right to have the decision reviewed by a court.58
In particular, reasonable time-frames for the different phases of the parti- cipatory process in water issues should be provided. They should allow sufficient time for inforrning the public, and for the public concerned to prepare and participate effectively in environmental decision-making. The Aarhus Conven- tion highlights two methods of informing the public: public notice and indi- vidual notice. Therefore, notification has a different meaning in international law. Notification goes beyond the narrow perspective of States, as came out in
54 It is essential to note the substantiallink between environmental education and participation.
This link has been made in several international instruments. See, e.g., the 1997 Thessaloniki Declaration of the UNESCO Conference on Environment and Society: Education and Public Awareness for Sustainability, which built upon declarations made at the Belgrade Conference on Environmenral Education (1975); the Tbilisi Intergovernmental Conference on Environmental Edu- cation (1977); the Moscow Conference on Environmental Education (1987); and the Toronto World Congress for Education and Communication on Environment and Deve10pment (1992). See also Chapter 36 of Agenda 21 on the promotion of education, public awareness, and training.
55 See Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice, Council Directives 85/337lEEC and 96/61/EC, Official Journal of the European Union, L 156/17,
25 June 2003. 56 J. Eb~sson, supra note 2, at 59.
57 See id., at 86. 58 Art. 9, Aarhus Convention.
•
Transparency, Public Participation, and Amieus Curiae 379 the Lake Lanoux casé9 and in the United Nations Convention on the Non- Navigational Uses of International Watercourses (hereinafcer the UN Waret- courses Convention).60 Public notice means the disseminatÎon of particular information to as many members of the public as possible, making use of the usuai rneans for general and widespread transmission of information. Public notice would be considered adequate 50 long as it targets the public concerned carly enough in the procedure ta render effeccive public participation. Means of notification Olay indude publication in a newspaper or other generaHy available primed media, dissemination through e1ectronic mass media (TV, radio, Inter- net), or posting of notices in areas with heavy traffic.61 Individual notice-that is, dissemination of particular information to certain classes of persons indi- vidually-is possible in appropriate situations. lncliviclual notice is espeeially important where individual interests might be affected by the decision. This illustrates the interchangeability and the systemic interaction between access to information and public participation peT se.
Regarding water-related decisions, international conventions can ensure expressis verbis a mandatory involvement of the public in decision-ma king processes referring te 'water specifie activities', 62 as weil as establishing, implicitly the obligation on the States to provide for public participation in a general comext, such as concerning 'plans, programs, and policies' and for 'executive regulations and generally applicable rules'. The right to participate in decision-ma king procedures that do not relate to a specifie activity is more generally defined and provides a wider margin of discretion for the Stare Parries.63
A particu]ar technique of international law allows implementation of the notion of public participation in water issues: EIA.64 The concept of the ElA has developed based upon the assumption that the quality of decisions would be enhanced by public participation.65 The Espoo Convention, which is to date the mos[ advanced treaty on ElA, indicates that an ElA conSIS[S of a participatory
59 Lake Lanoux Arbitration (SpainIFrance), 1957 (Nov. 16), Report of International Arbitral Awards, vol. 12 (1957), 281-317, at 306-307. English text: International Law Reports, \'01. 24 (1957), at 101-42, para. Il.
60 Su, e.g., Part III of the 1997 UN Watercourses Convention (Ans t 1-19). which, sers out a number of procedural provisions aimed at enhancing cooperation between co~rîparians conceming 'planned measures'.
61 Quoted from The Aarhus Conf/ention: An Implemenwtion Guide. supra note 28, at 96-7.
62 Annexes ra the conventions contain usually references ro water specifie activities. See, e.g., Annex lof the Aarhus Convention, supra note 2, and Appendix 1 of the Espoo Convention, supra note 17.
63 See, e.g. Arts 7 and 8 of the Aarhus Convention.
64 See 1992 Rio Declaration, Princîple 17; 'E.nvironmemal impacr assessmem, as a national instrument, shaLi be undenaken for proposed activiries that are likely (0 have a signifiant adverse impact on the environment and are subject to a decision by competent narional authority.' A large number of treaties and other international instruments-in more or less precise language-require ELAs for activities likely ta eause sorne environmental impairment.
65 Accarding to J. Ebbessan, supra note 2, at 68-9: 'In addition to concributing information, the involvemem of non·stare acrars secures critical re\'iews of the information presented by the project proponent ... the informacioncomributed by the public is nor limited lOenvironmencal "facts" but alsa
380 Makane Moïse Mbenglle and Mara Tignino
procedure, as well as of documentation of the proposed activiry's likely impacts.66 The Espoo Convention prescribes non-discrimination wirh respect to transboundary participation. It therefore reflects the notion that public parti- cipation is conceptually linked to such assessments.67 Moreover, the adoption of the Protocol on Strategie Environmental Assessment to the Espoo Convention stcengrhens the paccÎcipatory approach of the EIAs. Strategie environmental assessment68 mea os
the evaluation of the likely environmental, including healrh, effeets, which comprises the determination of the scope of an environmental report and its preparation, the carrying- out of public participation and consultations, and the taking into account of the envir- onmental report and the results of the public participation and consultations in a plan or
programme. .,
Strategie environmental assessment is expressis verbis provided
fJ
water-related aetivities.69
Public participation has a double aspect concerning th; ratÎone personae issues. In this regard, ir is relevant to define the notion of 'public' in general and of the 'public concerned' in particular.70 The definirion of 'public' applies the 'any person' principle. The definition of 'public' in Article l(x) of the Espoo Convention, is 'one or more natural or legal persons'. The same definirion can be
includes more subjective perceptions of enviroomental concerns. In a transboundar)' setting, the participation of non-state actors ma)' point public inscirurions towards transboundary effects that they might otherwise not have considered. In chis area too, ElA procedures provide a means for improving the qualiry of decisions, e.g. by shedding light on the sensiti ... iry of the en ... ironment in the neighboring stare.' Sl!l! also Protocol on Strategie Environmental Assessmenr, supra note 16. lts Art. 10, entitled 'Transboundary Consultations', states: '1.Where a Party of origin eonsiders that the implementation of a plan or programme is likely 10 have significant transboundary environmental, including health, effccts or where a Pany likely 10 he significantly affected so requests, the Party of origin shall as early as possible before the adoption of the plan or programme notif}' the affocted Party .... 4. Where such consultations take p~Cl!, the Parties concerned shal/ agrtl! on detailed arrangements to ensure tllal the public concerned and the authorities. ., in the affected Party are informed and given an opportullity to fonvord the;r opinion on the droft pkm or programme and the l!nvÎronmental report wjtl1in a reosonable time frame.' (emphasis added)
66 The panies to the Convention are obliged ta 'ensure that in accordance with the provisions of [the Espoo CoO\'ention] an environmental impact assessment is undertaken prior ro a deçision to authorize or undenake a proposed activity listed ... that Îs likely to cause a significant adverse transboundary impact'. Espoo Convention, supra note 17, Art. 3.
67 This linkage is also reflected, among others, in the 1987 UNEP Goals and Principles of Envir- onmental Impact Assessmenr (UNEP Goals, Principle 7), the World Bank Operational Directive on ElA, Operational Directive 4.01 (para. 19: 'The Bank expects the borrower co take the views of affected groups and local NGOs fully into account in projoct design and implemenration, and in pauicular in the preparation of ElAS'.)
68 See, e.g., Art. 4(2) of the Protocol: 'A strategie environmental assessmeot shall he carried out for plans and programmes which are prepared for agriculture, forestry, fisheries, energy, industry including mining, transpon, regional developmenr, waste management, water management, tele- communications, tourism, town and country planning or land use ... ' (emphasis added).
69 Protocol on Strategie Environmental Assessment, Water-related activicies in Anne:x: 1 and Water- related activities in Annex II.
70 The following ideas are quoted from The Aarhus Convention: An Implementation Guide, supra note 28, at 39-41.
