The EU in environmental negotiations in UNECE: An analysis of its role in the aarhus convention and the sea protocol negotiations

Review of European Community and International Environmental Law

Volumn 18, Issue 3, 2009, Pages 328-337

  Delreux, Tom ^a  

^a UNIVERSITY OF LEUVEN   (Belgium)

Author keywords

[No Author keywords available]

Indexed keywords

DECISION MAKING; ENVIRONMENTAL IMPACT ASSESSMENT; ENVIRONMENTAL PLANNING; ENVIRONMENTAL POLICY; EUROPEAN UNION; POLICY APPROACH;

EUROPE;

EID: 75649118964     PISSN: 09628797     EISSN: 14679388     Source Type: Journal    
DOI: 10.1111/j.1467-9388.2009.00653.x     Document Type: Article

References (58)

1. The EU's actorness is its ability to function actively and deliberately in relation to other actors in the international system. Generally, four dimensions of actorness are distinguished: cohesion, authority, autonomy and recognition. See, e.g., J. Jupille and J. Caporaso, 'States, Agency, and Rules: The European Union in Global Environmental Politics', in C. Rhodes (ed.), The European Union in the World Community (Lynne Rienner Publishers, 1998), at 213-229;
2. J. Vogler, 'The European Union as an Actor in International Environmental Politics', 8:3 Environmental Politics (1999), 24;
3. J. Reiter (2005), 'The European Union as Actor in International Relations: The Role of the External Environment for EU Institutional Design', in O. Elgström and C. Jönsson (eds), European Union Negotiations: Processes, Networks and Institutions (Routledge, 2005), at 148-163.
4. UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus, 25 June 1998).
5. Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a Transboundary Context (Kiev, 21 May 2003).
6. T. Delreux The EU as a Negotiator in Multilateral Chemicals Negotiations: Multiple Principals, Different Agents 15 : 7 Journal of European Public Policy (2008 1069.
7. T. Delreux The European Union in International Environmental Negotiations: A Legal Perspective on the Internal Decision-Making Process 6 : 3 International Environmental Agreements (2006 231.
8. UNECE is the United Nations Economic Commission for Europe. It is a regional organization of the United Nations, aiming to realize a sustainable economic growth in Europe. Besides European and Eurasian countries - including Russia -, the USA, Canada and Israel are also members of UNECE.
9. On the Aarhus Convention negotiations, one Commission official, four Member State representatives and two actors outside the EU were interviewed. On the SEA Protocol negotiations, one Commission official and five Member State representatives were interviewed. The interviews took place between September 2006 and January 2007.
10. These five treaties are the Convention on Long-Range Transboundary Air Pollution (Geneva, 13 November 1979) (LRTAP); the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo, 25 February 1991) (Espoo Convention); the Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Helsinki, 17 March 1992) (Water Convention); the Convention on the Transboundary Effects of Industrial Accidents (Helsinki, 17 March 1992) (Industrial Accidents Convention); and the Aarhus Convention, n. 2 above.
11. K. Brady New Convention on Access to Information and Public Participation in Environmental Matters 28 : 2 Environmental Policy and Law (1998 69
12. J. Palerm Public Participation in Environmental Decision Making: Examining the Aarhus Convention 1 : 2 Journal of Environmental Assessment Policy and Management (1999 229
13. V. Rodenhoff The Aarhus Convention and its Implications for the "Institutions" of the European Community 11 : 3 RECIEL (2002 343.
14. Rio Declaration on Environment and Development (A/CONF.151/26, 14 June 1992), Vol. I, Annex I.
15. H. Veinla K. Relve Influence of the Aarhus Convention on Access to Justice in Environmental Matters in Estonia 14 : 12 European Environmental Law Review (2005 326.
16. J. Jendroska, 'Public Information and Participation in EC Environmental Law: Origins, Milestones and Trends', in R. Macrory (ed.), Reflections on 30 Years of EU Environmental Law: A High Level of Protection? (Europa Law, 2006), at 61-84.
17. However, the Aarhus Convention is now open to every UN Member State.
18. The Sofia Declaration, being the result of the third ministerial UNECE conference 'Environment for Europe' in 1995, appealed to the establishment of a UNECE agreement on public participation on environmental matters. Article 47 of the Sofia Declaration stipulates that NGOs had to be actively involved in these negotiations: 'The development of a regional Convention on Public Participation should be considered with appropriate involvement of NGOs'. See Environment for Europe, Declaration by the Ministers of Environment of the Region of the United Nations Economic Commission for Europe (UNECE) (Sofia, 25 October 1995).
19. The only thing NGOs were not allowed to do was attend EU coordination meetings. This was contested by the NGOs.
20. In practice, the distinction between a project, a plan and a programme is not always clear. In general, projects are situated at a lower (more concrete) level than plans and programmes, which are still beneath the level of policies. Plans are often seen as coordinated and timed objectives for the implementation of policy, while a programme is a set of projects aimed to realize the plans. Hence, projects are located at the bottom level of environmental assessment, plans and programmes at the intermediate level, and policies at the top level.
21. J. De Mulder, 'Environmental Assessment in International Law: The "Impact" of the Espoo Convention, the SEA Protocol and Others', in T. Ormond, M. Führ and R. Barth (eds), The Environmental Law and Policy at the Turn of the Twenty-First Century (Lexxion Verlag, 2006), at 1-31.
22. As EIA and SEA are linked to the Aarhus Convention principles of public participation and access to justice on environmental matters, some of the issues on the negotiation table touched upon the Aarhus Convention. Therefore, the focal points of the Aarhus Convention were also invited to participate in these negotiations.
23. The issue of including health in the SEA Protocol was driven by the World Health Organization (WHO), which had a representative in the Bureau that assisted the Espoo Secretariat during these negotiations.
24. Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, [1985] OJ L175/40. This Directive has been amended by Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment, [1997] OJ L73/5, and by 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 85/337/EEC and 96/61/EC, [2003] OJ L156/17.
25. Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment, [2001] OJ L197/30.
26. J. Jendroska S. Stec The Kyiv Protocol on Strategic Environmental Assessment 33:3-4 Environmental Policy and Law (2003 105.
27. L. Feldmann, 'Die strategische Umweltprüfung im Völkerrecht (SEA-Protokoll zur Espoo-Konvention)', in R. Hendler et al. (eds), Die strategische Umweltprüfung (sog. Plan-UVP) als neues Instrument des Umweltsrecht (Erich Schmidt Verlag, 2004), at 27-36.
28. The USA never participated in the negotiations, Canada was only occasionally present and Russia negotiated in the first sessions, but left the negotiations at an early stage.
29. The Espoo Secretariat played a particular role in these negotiations, as it often defended a specific (maximalist) position instead of being neutral. Also the chair of the international negotiations was blamed for not being impartial and promoting maximalist positions. This caused tensions between the EU and the UNECE Secretariat. It even led to the following solemn declaration by the EU in the fifth negotiation session: 'On behalf of the European Commission and several of the Member States of the European Community, an appeal was made for a more proactive approach of the Secretariat in the fulfilment of its role' (Italy and Spain did not support this statement); see Commission Services, Explanatory Note from Commission Services to the Council: UNECE SEA Protocol, State of Play (6 June 2002). Member States even threatened to leave the negotiations 'if the process would have continued to be mismanaged' (as described by a Member State official).
30. See J. Jendroska and S. Stec, n. 22 above, at 105-110.
31. The Protocol includes some provisions going beyond the SEA Directive on public participation and on the extension of its scope to policies and legislative initiatives. However, these provisions are formulated in a sense that are considered not to require a review of the SEA Directive. These soft law formulations mostly take the form of 'to the extent appropriate'. For instance, in Article 5.3 on public participation in the screening stage, it states: 'To the extent appropriate, each Party shall endeavour to provide opportunities for the participation of the public concerned in the screening of plans and programmes under this article'.
32. See T. Delreux, n. 5 above.
33. Not all Member States were closely involved in these negotiations. The most active Member States were Germany, the UK, Italy, Denmark, Belgium and the Netherlands.
34. On access to information, see Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment, [1990] OJ L158/56; on public participation, see Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, [1985] OJ L175/40 and Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control, [1996] OJ L257/26.
35. An observer to the negotiations described such a situation as follows: 'If Member States were following the statement of the Commission, they said something like "in support of the statement that has just been made on behalf of the European Community, I want to state that..." and then they said something that was completely opposed to what the Commission had said'.
36. An example of an issue that is related to access to information - and thus in principle to EC competence - but on which the Member States could not agree and spoke on their own behalf, was the provision on the confidentiality of industrial or commercial information (Article 4.4(d) of the Aarhus Convention).
37. At the time of the SEA Protocol negotiations, the Aarhus Convention was not yet ratified by the EC.
38. It also happened that the 'coordinated position', as expressed by the Presidency, was not agreed upon by all Member States, but only by the majority of them. The Presidency thus also expressed positions 'on behalf of the majority of the Member States'. Member State representatives acknowledge that the Presidency and the Commission never expressed diverging or opposing positions at the international level.
39. J. Frieden One Europe, One Vote? 5 : 2 European Union Politics (2004 261.
40. These coordination meetings were usually organized on Sunday afternoons, while the UNECE negotiation session started on Monday mornings. During the third negotiation session, there was no single EU coordination meeting organized.
41. Germany is the only EU Member State that did not sign the Convention at the ministerial conference in Aarhus. It signed the Aarhus Convention only 6 months later, on the last day that it was open for signature.
42. European Commission, Proposal of 24 October 2003 for a Regulation of the European Parliament and of the Council on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to EC institutions and bodies, COM (2003) 622.
43. By that time, the first and the second pillar of the Aarhus Convention were already fully implemented. The existing directives were adopted and updated to the Aarhus provisions (Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC, [2003] OJ L41/26; 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 85/337/EEC and 96/61/EC, [2003] OJ L156/17). These implementing acts were less controversial than the proposal to implement the access to justice pillar, as EC regulations already existed in these areas and as the existing directives foresaw a review by the end of the 1990s.
44. European Commission, Proposal of 24 October 2003 for a Directive of the European Parliament and of the Council on access to justice in environmental matters, COM (2003) 624.
45. European Commission, Proposal of 24 October 2003 for a Council Decision on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision making and access to justice regarding environmental matters, COM (2003) 625.
46. Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, [2005] OJ L124/1.
47. Regulation 2006/1367/EC of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, [2006] OJ L264/13.
48. This group mostly consisted of the Commission, Austria, Germany, Sweden, France and the UK.
49. R. Putnam Diplomacy and Domestic Policies: The Logic of Two-Level Games 42 : 3 International Organization (1988 427
50. J. Lantis The Life and Death of International Treaties: Double-Edged Diplomacy and the Politics of Ratification in Comparative Perspective 43 : 1 International Politics (2006 24.
51. Council Decision 2008/871/EC of 20 October 2008 on the approval, on behalf of the European Community, of the Protocol on Strategic Environmental Assessment to the 1991 UN/ECE Espoo Convention on Environmental Impact Assessment in a Transboundary Context, [2008] OJ L308/33.
52. The seven Member States that have ratified the SEA Protocol are Bulgaria, Czech Republic, Finland, Germany, Luxembourg, Slovakia and Sweden (as of June 2009).
53. Examples of SEA Protocol provisions that may diverge from provisions in the Directive are monitoring (Article 12), on which the Protocol states that it should occur in a publicly visible manner, while the Directive does not have such a requirement; screening (Article 5), on which the Protocol provision requires 'to the extent appropriate' (i.e. soft wording) the involvement of the public, while this is not foreseen in the Directive; and the indication of health in the Protocol ('environment, including health') (multiple articles) is different than the one in the Directive ('environmental effects').
54. Denmark already had very transparent national legislation with regard to the Aarhus principles. Moreover, as Denmark would host the ministerial conference where the Convention would be signed, it was keen to reach an agreement that was quite strong, so that NGOs would support it and not protest against it during the Aarhus conference.
55. As already mentioned, during sessions 1-7, the Commission did not play an active role in the negotiations.
56. The EC made a declaration upon its signature (Council of Ministers, Council Conclusions of the 2108st Council Meeting 09551/98, Presse 207, 17 June 1998) and ratification (see Council Decision 2005/370/EC, n. 42 above of the Aarhus Convention, stating that '... the Community also declares that the Community institutions will apply the Convention within the framework of their existing and future rules on access to documents and other relevant rules of Community law in the field covered by the Convention'. This illustrates the difficulties the EC had with the application of the Aarhus Convention to its institutions.
57. However, the UK seemed to have been able to accept somewhat more the Aarhus provisions and the inclusion of health in the Protocol. On extending the Protocol's scope to the policy level, the UK preference was nevertheless very minimalist.
58. In Italy, the change of government led to a change in the Italian negotiating team, in which a very active and maximalist individual representative was replaced by a more moderate and less active official. This changed the Italian position in the EU decision-making process.