This is the first annual report on non-compliance procedures (NCPs) to be included in the Yearbook for quite a few years. Examples are found in numerous multilateral and regional environmental agreements. These include the Montreal Protocol on Substances That Deplete the Ozone Layer, the Kyoto Protocol to the United Nations Framework Convention on Climate Change, the Cartagena Protocol on Biosafety, and the Convention on International Trade in Endangered Species of Wild Fauna and Flora. Regional examples include the United Nations Economic Commission for Europe (UNECE) agreements including the Convention on Long-Range Transboundary Air Pollution. Since the role of NCPs is sometimes misunderstood, this report first provides a brief overview of them, with a specific example of application. Second, it considers the application of two UNECE NCPs in 2016: the Compliance Committee of the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) and the Implementation Committee of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention). NCPs focus on dispute avoidance rather than dispute settlement; they are autonomous institutional arrangements operating within the context of a Meeting or Conference of the Parties and have a role in globalizing administrative law. In general, they are an international form of alternative dispute resolution focusing on soft compliance; however, while non-compliance often derives from a lack of financial or technical capacity, it may also come from an intentional breach. Examples of both in 2016 are given in the second part of this report. One complicated case concerns the application of several procedures in relation to the Danube Delta. Three NCPs were invoked: the Espoo Convention Implementation Committee, the Aarhus Convention Compliance Committee (ACCC), and the Convention on the Conservation of European Wildlife and Habitats Convention Standing Committee. Although there was substantial collaboration between them, this particular matter is far from resolved. Under the Espoo Convention, there have been two challenges by Romania against Ukraine in relation to the Bystroe Canal Project (Docs. EIA/IC/S/1 and EIA/IC/S/1/bis) and another by Ukraine against Romania in relation to inland waterways in the Romanian sector of the Danube Delta (Doc. EIA/IC/S/2). In 2016, the Espoo Convention Implementation Committee is still following up the matter despite the close of the second relevant case (<https://www.unece.org/env/eia/implementation/eia_ic_s_1.html>). The popularity of NCPs ultimately derives from their soft approach and the lack of capacity of many states. However, the fact that their use has increased in recent times, especially in the UNECE region and inspired by the ACCC, and that there is evidence not only of a lack of capacity but also of a lack of willingness to comply, indicates their relevance in a range of contexts. In some instances, a failure to provide national reports may be of equal significance if it limits the ability of a NCP to uncover cases of non-compliance. For example, Russia has shown a distinct pattern of non-compliance with the reporting obligations under another UNECE treaty, the Convention on the Transboundary Effects of Industrial Accidents, failing to submit reports for each of the previous reporting rounds until 2016 (Doc. ECE/CP.TEIA/32, para. 42). As this particular treaty does not currently have a NCP, this illustrates the significance of being able to effectively follow up on incidents of non-compliance from national implementation reports as well as other means. The institutionalization of compliance controls across related treaties and protocols is a very useful means of improving international governance. An informal network of chairpersons of compliance and implementation bodies under the UNECE environmental agreements has been established and has met four times in recent years (March 2013, March 2014, June 2015, and June 2016) (<https://www.unece.org/environmental-policy/conventions/joint-work-and-informal-networks.html>). In 2016, it explored methods for gathering and processing information; possibilities for improving the facilitative and consultative functions; possibilities for improving cooperation and information exchange between them, including during follow-up; recent developments and innovative practices from non-UNECE review mechanisms; possible indicators for evaluating the effectiveness of implementation and compliance mechanisms; and experiences with informal procedures involving the public to strengthen implementation. There is an increasing trend towards the judicialization of NCPs, with the development of quasi-jurisprudence sometimes referred to as ‘case law.’ This is especially so in connection with the public communications heard by the ACCC, the most advanced of these bodies in providing public access. With 144 communications from 2004 to 2016 from individuals and non-governmental organizations (NGOs), this is heralded as a precedent for other comparable bodies and has become a very popular means of addressing non-compliant state practice. While not directed at individual remedies, it also provides opportunities to challenge procedural failings in various related UNECE regimes including the Espoo Convention. Individuals and NGOs have the right to submit complaints without needing to demonstrate a specific interest or to prove they are affected by the decision. Proceedings are largely in public; members are independent and serve in their personal capacity, and they may also be nominated by environmental NGOs. There is also a requirement of the state party to consult with the public when national reports—which, as noted, often form the basis for action—are being prepared. Some of the UNECE compliance bodies are also involved in reviewing national implementation reports themselves. The ACCC procedure may, however, be triggered in four different ways: a party may make a submission about compliance by another party; a party may make a submission concerning its own compliance; the Secretariat may make a referral to the committee; and members of the public may make communications concerning a party’s compliance with the convention. The ACCC may also consider matters on its own initiative. After a process providing the opportunity for a challenged party to respond to allegations, there is finally an opportunity for sanctions to be recommended by the ACCC for consideration by the Meeting of the Parties. While, for the most part, limited to naming and shaming, these may nonetheless prove effective in changing the non-compliant behaviour. There are eight possible responses to non-compliance, which were decided on at the first Meeting of the Parties: providing advice and facilitating assistance; making recommendations; requesting a strategy within a specific time to deal with the non-compliance and reporting on it; making recommendations on specific measures raised by a member of the public issuing declarations of non-compliance; issuing cautions; suspending special rights and privileges; and taking ‘non-confrontational, non-judicial and consultative measures as may be appropriate.’ In 2016, the ACCC met four times (March, June, September, and December) to consider various issues, including earlier, as well as more recent, communications. In relation to the controversial case on access to the Court of Justice of the European Union by environmental NGOs (Doc. ACCC/C/2008/32 Part II, European Union), the draft findings were finalized following the March meeting (Doc. ECE/MP.PP/C.1/2016/2, para. 18). The main conclusion was that ‘[t]he Committee finds that the Party concerned fails to comply with article 9, paragraphs 3 and 4, of the Convention with regard to access to justice by members of the public because neither the Aarhus Regulation nor the jurisprudence of the ECJ implements or complies with the obligations arising under those paragraphs’ (<https://www.unece.org/env/pp/compliance/Compliancecommittee/32TableEC.html>). At the December meeting, the party concerned—taking note of these—requested a second hearing on the substance of the communication (Doc. ECE/MP.PP/C.1/2016/9, para. 14). This was refused, with the adopted findings to be sent to the party concerned and made available at the fifty-seventh meeting in 2017. In 2016, nine new cases were also initiated against parties to the Aarhus Convention: United Kingdom (two, one inadmissible), Germany, Armenia, Ireland (two), Romania, Czech Republic, and Bulgaria. The inadmissible UK case concerned alleged non-compliance with respect to public participation and access to justice generally in relation to the proposed construction of a railway (Doc. ACCC/C/2016/136). It was concluded that the allegations made did not pass the de minimis test in the light of the purpose and functions of the committee to promote and improve compliance and that, in addition, it had not been shown that domestic remedies had first been exhausted. The other UK case was brought by the communicant to enforce waste legislation (Doc. ACCC/C/2016/142); another of the communications in 2016 in relation to Czech Republic concerned a nuclear power station and the legal framework of the state (Doc. ACCC/C/2016/143). The remainder of the second part of this report considers the operation of the Espoo Convention Implementation Committee, particularly in 2016. The objective of the committee is to review compliance by the parties with their obligations under the convention and the related Protocol on Strategic Environmental Assessment (SEA Protocol) with a view to assisting them fully to meet their commitments. The committee’s purpose is explained as follows: ‘[T]o help Parties with their implementation under the Convention [and the SEA Protocol]. The Committee’s mandate makes this clear: the compliance procedure … is meant to be “non-adversarial and assistance-orientated”’ (Matthias Sauer, Chair of the Committee 2008–11, What UNECE Does for You). The committee was established by the Meeting of the Parties in February 2001 (Decision II/4 of the second Meeting of the Parties, revised as Decision III/2, which provides the structure and functions of the Implementation Committee and procedures for review of compliance). The committee comprises eight members nominated by parties that are, in turn, elected by the Meeting of the Parties. The Implementation Committee procedure is triggered in one of three ways: first, the committee considers submissions made by one or more parties about another party’s compliance; second—known as ‘self-referral’—the committee considers submissions made by a party about its own compliance; and third—known as a ‘committee initiative’—the committee becomes aware of possible non-compliance, which may happen as a result of submission of national implementation reviews. The committee met three times in 2016 (March, September, and December), following up on Decision VI/2 in relation to Ukraine, Armenia, Azerbaijan, and Belarus; considering submissions; examining committee initiatives in relation to the United Kingdom and Serbia; collecting information concerning Serbia, the Netherlands, and Bosnia and Herzegovina, and regarding convention and protocol matters, the review of implementation, and other matters. Many of the submissions made to the committee concern energy matters. This is relevant in the light of the preparation of the good practice recommendations on the application of the Espoo Convention to nuclear energy-related activities, proceeding in accordance with the conclusions from the Working Group on the Espoo Convention and the SEA Protocol at its fifth meeting (11–15 April). Several of the energy matters determined by the committee deal specifically with nuclear energy. The follow-up to Decision VI/2 of the Meeting of the Parties to the Convention on the Review of Compliance with the Espoo Convention concerned the ongoing situation in relation to the Danube Delta—the Danube-Black Sea Deep Water Navigation Canal, otherwise known as the Bystroe Canal Project, which was mentioned in the first section of this report (Docs. ECE/MP/EIA/20/Add.1 and ECE/MP.EIA/SEA/4/Add.1). At the thirty-fifth session, Ukraine was asked for additional information in writing on the concrete measures to bring the project into conformity with the convention, notably the invalidity of the assessments undertaken, the decision to stop any works under the first phase, and notification of the potentially affected parties (Doc. ECE/MP.EIA/IC/2016/2, para. 12). At the thirty-sixth session, the committee considered whether the dredging activities undertaken were a further breach of the convention, concluding that until the first phase was brought into full compliance, dredging of the seaward part of the channel represented a continuation of the non-compliance (Doc. ECE/MP.EIA/IC/2016/4, para. 13). At the thirty-seventh session, while welcoming the preparation of domestic implementing law, the committee regretted the vetoing of these by the Ukrainian president (Doc. ECE/MP.EIA/IC/2016/6, para. 8) and also noted the failure to provide a report on the implementation of the post-project analysis (para. 11). It ‘agreed that the progress made by Ukraine in bringing the Bystroe Canal Project into full compliance with the Convention … had been very limited’ (para. 13). As a consequence, communication with Ukraine was required with a view to finalizing recommendations at the thirty-eighth session in 2017: ‘The Committee noted that, in case of the further prolongation of non-compliance by the Party concerned, it would consider recommending to the Meeting of the Parties to take more stringent measures’ (para. 15). Another case of significance in 2016 was the conclusion of the committee initiative taken against United Kingdom in connection to the planned construction of the Hinkley Point C nuclear power plant. Findings and recommendations were finalized in March 2016 and attached as an eleven-page annex to the report. The case began in 2013 with a member of the German parliament providing information to the Implementation Committee concerning a failure to notify Germany and consult with the German public. An Irish NGO expressed similar views in relation to Ireland and its public, and other neighbouring states also expressed concerns despite advocacy from the British government that it did not have to consult because there was little or no likelihood of ‘significant transboundary environmental impacts.’ The Implementation Committee, however, found at its thirtieth session that there was ‘a profound suspicion on non-compliance’ and a committee initiative was begun (Doc. EIA/IC/CI/5). Austria, in particular, emphasized that there should have been consultation because the possibility of a severe accident could lead to radioactive materials being spread by wind across Europe. The Netherlands and Norway also argued that they should have been consulted, and, at the thirty-fifth session, the Implementation Committee agreed. It found ‘that the characteristics of the activity and its location warrant the conclusion that a significant adverse transboundary impact cannot be excluded in case of a major accident … [and] the United Kingdom is in non-compliance with its obligations’ (Doc. ECE/MP.EIA/IC/2016/2, para. 66). It recommended that United Kingdom ‘enter into discussions with possibly affected Parties, including Parties that cannot exclude a significant adverse transboundary impact from the activity at Hinkley Point C, in order to agree on whether notification is useful at the current stage for this proposed activity’ (para. 67(b)). In September, the UK government gave final approval for Hinkley Point C to proceed despite also being urged by the committee ‘to ensure that, in the context of any future decision-making regarding the planned construction of a nuclear power plant, notifications are sent in accordance with the Convention’ (para. 67(d)). Information is awaited with interest to see whether and when this has in fact occurred. © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: firstname.lastname@example.org
Yearbook of International Environmental Law – Oxford University Press
Published: Dec 28, 2017
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