Legal Framework for
Public Participation(General Overview)
Pierre BOURDON
Junior Legal Adviser
Office of Legal Counsel

FNCA Study Panel
23 March 2018
© 2018 Organisation for Economic Co-operation and Development

Agenda• Introduction: General principles of international
environmental law regarding public participation• The UNECE instruments– (Espoo) Convention on Environmental Impact Assessment in a
Transboundary Context– (Kiev) Protocol on Strategic Environmental Assessment– (Aarhus) Convention on Access to Information, Public Participation inDecision-making and Access to Justice in Environmental Matters• A new regional instrument: the ECLAC Regional Agreement– Regional Agreement on Access to Information, Participation andJustice in Environmental Matters in Latin America and the Caribbean© 2018 Organisation for Economic Co-operation and Development

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Introduction:
General principles ofinternational environmental
law regarding publicparticipation© 2018 Organisation for Economic Co-operation and Development

Brief chronology• 1972: Declaration of the United Nations Conference on the

Human Environment (Stockholm Declaration)• 1991: Espoo Convention opened for signature (EiF1997)• 1992: Rio Declaration on Environment and Development• 1998: Aarhus Convention opened for signature (EiF 2001)• 2003: Kiev Protocol opened for signature (EiF 2010)• 2018: ECLAC Regional Agreement opened for signature© 2018 Organisation for Economic Co-operation and Development

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Stockholm Declaration (1972) – Non-binding
Principle 21“States have, in accordance with the Charter of the United
Nations and the principles of international law, thesovereign right to exploit their own resources pursuant totheir own environmental policies, and the responsibility toensure that activities within their jurisdiction or control do
not cause damage to the environment of other States or ofareas beyond the limits of national jurisdiction.”© 2018 Organisation for Economic Co-operation and Development

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Rio Declaration (1992) – Non-binding• Principle 17: Environmental impact assessment, as a nationalinstrument, shall be undertaken for proposed activities that are likely tohave a significant adverse impact on the environment and are subject
to a decision of a competent national authority.
• Principle 10: Environmental issues are best handled with theparticipation of all concerned citizens ... States shall facilitate andencourage public awareness and participation by making information
widely available…
• Principle 19: States shall provide prior and timely notification andrelevant information to potentially affected States on activities that may
have a significant adverse transboundary environmental effect andshall consult with those States at an early stage and in good faith.
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In Customary International Law• The obligation for States “to undertake an environmental

impact assessment where it is a risk that the proposedindustrial activities may have a significant adverse impact in atrans-boundary context, in particular, on a shared resource.”–Pulp Mills on the River Uruguay (Argentina/Uruguay) ICJ Reports 2010,
para. 204

• The “general obligation of States to ensure that activities within

their jurisdiction and control respect the environment of otherStates or of areas beyond national control is now part of thecorpus of international law relating to the environment.”–Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ
Reports 1996, p. 241-242© 2018 Organisation for Economic Co-operation and Development

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The United Nations Economic
Commission for Europe(UNECE) Instruments© 2018 Organisation for Economic Co-operation and Development

UNECE Environmental Conventions
Covering Nuclear Activities• Convention on Environmental Impact Assessment in a
Transboundary Context (Espoo Convention) (1991)– 45 parties: majority of European (incl. EU) and Central Asian
countries, plus Canada; to be open for global accession• Convention on Access to Information, Public
Participation in Decision-Making and Access to Justicein Environmental Matters (Aarhus Convention) (1998)– 47 parties: majority of European (incl. EU) and Central Asian
countries; open for global accession• Protocol on Strategic Environmental Assessment to the
Espoo Convention (SEA Protocol or Kiev Protocol) (2003)– 32 parties: Europe (incl. EU), Armenia and Cyprus© 2018 Organisation for Economic Co-operation and Development

9Espoo Convention (1991)
 Purpose: to prevent, reduce, control significant adverse transboundary
impact via an environmental impact assessment (EIA) procedure Obligations of Party of Origin (where the proposed activity is located):
to undertake an EIA at an early stage of project planning Stages of the EIA Procedure:
1.

Screening2.

Notification

3.

EIA documentation

4.

Public participation

5.

Consultations

6.

Examination of the information gathered and final decision

7.

Post-project analysis© 2018 Organisation for Economic Co-operation and Development10Application of Espoo to Nuclear Activities
Appendix I of the Espoo Convention
2nd amendment – entered into force in October 2017
2. (b) Nuclear power stations and other nuclear reactors, including thedismantling or decommissioning of such power stations or reactors (except
research installations for the production and conversion of fissionable and fertilematerials, whose maximum power does not exceed 1 kilowatt continuous
thermal load).
3. (a) Installations for the reprocessing of irradiated nuclear fuel;(b) Installations designed:– For the production or enrichment of nuclear fuel;– For the processing of irradiated nuclear fuel or high-level radioactive waste;– For the final disposal of irradiated nuclear fuel;– Solely for the final disposal of radioactive waste; or– Solely for the storage (planned for more than 10 years) of irradiated nuclear
fuels or radioactive waste in a different site than the production site.
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Espoo Implementation Committee
 “Non-adversarial and assistance-oriented” procedure:• Submissions: Party to party;• Committee initiatives: Information from other sources (usuallyNGOs) or compliance issues arising from the periodic reviews ofimplementation
 Closed sessions
 “Hearings” with Parties whose compliance is at issue
 Finding and Recommendations (non-binding) are forwarded to theMeeting of the Parties to the Convention (MOP) for adoption© 2018 Organisation for Economic Co-operation and Development

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Espoo Implementation Committee
Closed proceedings regarding nuclear:– Armenia: Metsamor NPP (S/3)– Belarus: Ostrovets NPP (S/4)– Ukraine: Rivne NPP LTE (CI/4)– UK: Hinkley Point C (CI/5) (pending formal MOP adoption)

Ongoing proceedings regarding nuclear include:– Czech Republic: Dukovany NPP LTO (2016)– Ukraine: SU, Zaporizhzhya and Khmelnitsky NPPs LTO (2016)– Spain: Almaraz NPP waste storage (2017)© 2018 Organisation for Economic Co-operation and Development

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Espoo Good Practice Recommendations• Good practice recommendations endorsed by 7th MOP(ECE/MP.EIA/2017/10) in June 2017
• Does not create any obligations and are without prejudice to theobligations set out in the Espoo Convention.
• Seven chapters: covering all stages of the EIA procedure• Each chapter includes a summary of approaches, good practice
examples and good practice recommendations• 12 examples by 9 countries: Austria, Bulgaria, Finland, Germany,
Hungary, Poland, Romania, Slovakia, Sweden.
• 15 practical examples in an additional informal document.

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Kiev Protocol (2003)• Goal: to provide early and effective inputs to ensure thatenvironmental considerations are thoroughly taken into accountin the development of plans and programmes• Requires that a strategic environmental assessment (SEA)
be carried out for certain plans, programmes and possibly
policies and legislation that are likely to have significant
environmental, including health, effects.
• Parties to the SEA Protocol must integrate environmental
assessments into their development of plans and programmes
at the earliest stages, irrespective of whether these plans orprogrammes are likely to have an impact on the territory ofanother state.
© 2018 Organisation for Economic Co-operation and Development

15Strategic Environmental Assessment (SEA)• Environmental Report (ER): shall identify, describe and evaluate thelikely significant environmental, including health, effects* of implementing
the plan or programme and its reasonable alternatives.
• Public Participation: process should serve the purposes of providing
information, gathering comments and engaging the public concerned incollaborative problem solving.
• Transboundary Consultations: notification required when a proposedplan or programme in one country (the Party of Origin) is likely to havesignificant environmental effects on the territory of another country (theAffected Party). Must include the draft plan or programme, the ER,including info. on transboundary effects, and info. on the decision-makingprocedure, including information on a time schedule for comments.
* Environmental, including health, effect: any effect on the environment, including human health, flora,fauna, biodiversity, soil, climate, air, water, landscape, natural sites, material assets, cultural heritage and theinteraction among these factors.
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Aarhus Convention (1998)
Objective
Contribute to the protection of the right of every person ofpresent and future generations to live in an environment
adequate to his or her health and well-being, each Party shallguarantee the rights of:1) access to information (Pillar I),2) public participation in decision-making (Pillar II), and
3) access to justice in environmental matters (Pillar III)© 2018 Organisation for Economic Co-operation and Development

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Aarhus Convention: Pillar 1
Access to Environmental Information
Purpose: ensures that members of the public are able to know andunderstand what is happening in the environment around them. It also
ensures that the public is able to participate in an informed manner.
Article 4: Requires a system that enables the public to request and receive
environmental information from public authorities• Public authorities to make information available upon request• Time limits for public authorities to respond and supply the requested
information (ASAP or 1-2 months)• Acceptable limitations on disclosure (international relations, national
defence, IP, personal data, third party interests, etc.)• Optional charges
Article 5: Requires a system through which public authorities collectenvironmental info. and actively disseminate it to the public without request© 2018 Organisation for Economic Co-operation and Development18

Aarhus Convention: Pillar 1
Definition of “environmental information” regardingnuclear activities- Information on radiation and activities and measures affecting
or likely to affect the environment [art. 2(3)(b)]- Information on the state of human health and safety, conditionsof human life, cultural sites and built structures inasmuch as
they are or may be affected through the environment byradiation or activities or measures [art. 2(3)(c)]© 2018 Organisation for Economic Co-operation and Development

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Aarhus Convention: Pillar 2
Public Participation in Decision-Making
Why: people have the right to take part in basic decisions affecting theirlives. The quality of these decisions can be improved through the active
involvement of the public concerned.
Article 6: public participation in decisions on specific activities, which are
Annex 1 activities (see below) or other activities with a potential significant
effect on the environment, for example, decisions on the proposed siting,construction and operation of certain types of facilities, often over a certain
size, as well as other activities for which an EIA procedure including public
participation is required under national law[See also Art. 7 (development of plans, programmes & policies) and 8 (preparation of laws & regulations)]

Article 6 Covered Activities (Annex 1)
Nuclear power stations and other nuclear reactors including the dismantling or
decommissioning of such power stations or reactors (except research installations
for the production and conversion of fissionable and fertile materials whose
maximum power does not exceed 1 kW continuous thermal load) …
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Aarhus Convention: Pillar 2
Public participation requirements under Article 6• Conduct public participation early in decisions on activities with apossible significant environmental impact• Give notice to the public concerned• Establish reasonable time frames for phases of public participation• Provide all relevant information to the public concerned• Provide opportunities for the public to make comments• Take due account of the outcome• Inform the public of the final decision with reasons© 2018 Organisation for Economic Co-operation and Development

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Aarhus Convention: Pillar 3
Access to JusticeParties’ obligations to ensure that the public has access to review
procedures to challenge:• Refusals to provide requested information [art. 9(1)]• Legality of decisions, acts or omissions related to decision-making[art. 9(2)]• Acts or omissions by private persons or public authorities which
contravene national law relating to the environment [art. 9(3)]All review procedures must be fair, timely, equitable, not prohibitively
expensive and provide adequate and effective remedies [art. 9(4)].

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Aarhus Compliance Committee
Proceedings regarding nuclear have included:• Slovakia: Mochovce Units 3 & 4 (ACCC/C/2009/41) (dec. 2011)• Belarus: new nuclear power plant (ACCC/C/2009/44) (dec. 2011)• UK: Hinkley Point C (ACCC/C/2013/91) (dec. 2017)• Netherlands: Borselle NPP LTO (ACCC/2014/104) (ongoing)• Hungary: Paks NPP LTO (ACCC/C/2014/105) (ongoing)• Czech Republic: Dukovany NPP LTO (ACCC/C/2016/143) (ongoing)
Non-admissibility for some cases:•

Belgium: Tihange NPP LTO (PRE/ACCC/C/2017/145) (lack of information)•

Spain: Almaraz NPP (PRE/ACCC/C/2017/152) (corrective actions)© 2018 Organisation for Economic Co-operation and Development23

Towards an United Nations
Economic Commission forLatin America and theCaribbean (ECLAC) Instrument© 2018 Organisation for Economic Co-operation and Development

ECLAC REGIONAL AGREEMENT Negotiations started in 2014 under the auspices of the United Nations
Economic Commission for Latin America and the Caribbean (ECLAC).
 Adoption of the first regional agreement to protect rights of access inenvironmental matters in Latin America and the Caribbean byrepresentatives of 24 ECLAC countries at the 9th meeting of the negotiating
committee on 4 March 2018 in Costa Rica.
 Regional Agreement to be open for signature to all countries in Latin
America and the Caribbean (33 countries) at the UN Headquarters from27 September 2018 to 26 September 2020.
 First international legally binding instrument to promote Principle 10of the Rio Declaration outside the UNECE Region.
 First Conference of the Parties to be held no later than one year after theentry into force of the Regional Agreement.
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Useful Links• Espoo Convention & Kiev Protocol website:www.unece.org/env/eia/welcome.html• Espoo Good Practice Recommendations:www.unece.org/fileadmin/DAM/env/documents/2017/EIA/MOP7/28_04_
2017_ece_mp.eia_2017_10_e.pdf• Aarhus Convention website: www.unece.org/env/pp/welcome.html• Aarhus Convention Implementation Guide:
www.unece.org/fileadmin/DAM/env/pp/Publications/Aarhus_Implementat
ion_Guide_interactive_eng.pdf• ECLAC Regional Agreement website:www.negociacionp10.cepal.org/9/en© 2018 Organisation for Economic Co-operation and Development

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Thank you for your attention!

All NEA publications and institutional documentation available atwww.oecd-nea.org© 2018 Organisation for Economic Co-operation and Development

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