Jerzy Jendrośka Energy security and legal requirements for environmental protection, public involvement and transboundary co-operation

Transcription

1 Jerzy Jendrośka Energy security and legal requirements for environmental protection, public involvement and transboundary co-operation Scientific support to energy security in the Baltic Sea Region Vilnius, Jerzy Jendrośka 1

2 General principles General principles of international law Trail Smelter case - arbitration tribunal Nagymaros-Gabcikovo case - ICJ Rio Declaration on Environment and Development general responsibility for transboundary environmental damage - Principle 2 two secondary principles (18 and 19) Jerzy Jendrośka 2

3 Rio Declaration - Principle 2 States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. Jerzy Jendrośka 3

4 Rio Principles Principle 4 In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. Principle 17 Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority. Jerzy Jendrośka 4

5 Principle 10 Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings,including redress and remedy, shall be provided. 5 Jerzy Jendrośka

6 Principle 18 States shall immediately notify other States of any natural disasters or other emergencies that are likely to produce sudden harmful effects on the environment of those States. Every effort shall be made by the international community to help States so afflicted. Jerzy Jendrośka 6

7 Principle 19 States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith. Jerzy Jendrośka 7

8 Substantive vs procedural obligations Substantive obligations avoiding/minimising harm compensating damage Procedural obligations notification transboundary procedure Jerzy Jendrośka 8

9 Relevent international instruments Multilateral agreements concerning shared natural resources concerning transboundary impact Bilateral agreements general co-operation in environmental protection concerning shared natural resources concerning transboundary impact Jerzy Jendrośka 9

10 Transboundary procedure in law International law Espoo Convention SEA Protocol Industrial Accidents Convention EU law EIA Directive SEA Directive IPPC/IED Directive Seveso II Directive Jerzy Jendrośka 10

11 Espoo Convention Adopted and signed in Espoo in 1991 entered into force 10 September 1997 status: 45 Parties (including EU) First amendment - MOP II definition of the public open to non-unece countries Second amendment - MOP III scoping extended list of activities on Appedix I review of compliance Jerzy Jendrośka 11

12 Obligations Party of origin notification provision of EIA documentation transboundary procedure consultations provision of final decision Affected Party provision of information if requested Both concerned Parties public participation in affected party Jerzy Jendrośka 12

13 UNECE Aarhus Convention Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters adopted and signed in Aarhus (Denmark) entry into force PRTR Protocol adopted and signed in Kiev GMO Amendment adopted and signed in Almaty (Kazakhstan) Opole University 13

14 3 pillars Access to information passive disclosure Art. 4 active disclosure Art. 5 Public participation decisions whether to permit specific activities which may have a significant effect on the environment - art 6 GMO decisions Art. 6 bis plans/programs relating to environment Art. 7 policies relating to environment Art. 7 normative acts/legally binding rules that may have a significant effect on the environment Art. 8 Access to justice reddress in case of abusing right to information - art.9.1 reddress in case of abusing right to participate - art.9.2 separate right to file a public interest law suit - art.9.3 Opole University 14

15 Aarhus Convention status and role in Europe Aarhus Convention as a benchmark Aarhus Convention in EU part of the acquis Member States implement Aarhus via EU law European Commission and ECJ as enforcers Opole University 15

16 Public participation Public national from affected Party (from areas likely to be affected) equivalent opportunities (Art.2.6) Joint responsibility of Parties concerned! Possibility to submit comments (Art.4.2) directly to the competent authority in the Party of origin through the Party of origin (for example via Point of Contacts) Jerzy Jendrośka 16

17 Public participation II Comments concerning proposed activity concerning EIA documentation any comments according to Aarhus Public participation at various stages Public to be informed about the final decision and possibilities to appeal (ECE/MP.EIA/8) Jerzy Jendrośka 17

18 Vienna law of the Treaties (I) Art Pacta sunt servanda Every treaty in force is binding upon the parties to it and must be performed by them in good faith. Jerzy Jendrośka 18