STATE OBLIGATIONS UNDER THE ESPOO AND AARHUS CONVENTION - international airport case -

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1 STATE OBLIGATIONS UNDER THE ESPOO AND AARHUS CONVENTION - international airport case - Vladimir Lukic* *NGO Civil Ecology Action Thales This paper has been issued for the purpose of the Environmental Law Programme of the United Nations Institute for Training and Research (UNITAR). This is a simulated case of airport construction with possible transboundary effect on environment. State of Zimtland is planning a construction of international airport 20 km from the border with Quietland. Population of both countries is worried about the expected noise and because it is expected for the airport to have some impact on local air quality. The objective is to explain all the legal obligations of Zimtland s authorities under the 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context and 1998 Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Zimtland and Quietland are Parties to both conventions). Zimtland s authorities want to know if an environmental impact assessment is required, who can participate in the proceedings, and to what extent. Zimtland s authorities also want to know how the assessment would take place, and what its steps would be. In the following text are explained the legal obligations for the country building the international airport, according to international environmental conventions, to which is Party of Convention. INTRODUCTION Since the building of the Zimtland airport is planned in the vicinity of the border with Quietland, and that it can be expected for project activities to affect the living conditions of both population of Zimtland and Quietland, the provisions of the following Conventions are included in the making of this legal brief 1991 Espoo Convention on Environmental Impact Assessment in a Transboundary Context and 1998 Aarhus Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters. In the first place, if you want to increase public confidence in the Environmental Impact Assessment (EIA) procedure, and consequently to gain support for the planned project, there is a need for transparent process. In order to take account of views and concerns of key stakeholders, mostly residents of regions likely to be affected, and to ensure that important impacts are not overlooked, this is also the way to reduce possible conflicts through the early identification of contentious issues. In this case of transboundary impact, there is also a need to keep and to upgrade good neighbourhood relations.

2 ESPOO CONVENTION Decision on EIA procedure Under Espoo Convention, in APPENDIX I that lists activities that are likely to cause significant adverse transboundary impact, paragraph 7 says : Construction of motorways, express roads and lines for long-distance railway traffic and of airports with a basic runway length of 2,100 meters or more. That is the answer whether or not Zimtland authorities need EIA according to Espoo Convention. On the other hand, if the Zimtland airport is with a basic runway length of less than 2,100 meters and therefore is not listed in Appendix I, the concerned Parties (Zimtland, Quietland and any other Party) may consider whether the activity is likely to have a significant adverse transboundary impact in particular by virtue of one or more of the following criteria: (a) Size: proposed activities which are large for the type of the activity; (b) Location: proposed activities which are located in or close to an area of special environmental sensitivity or importance; proposed activities in locations where the characteristics of proposed development would be likely to have significant effects on the population; (c) Effects: proposed activities with particularly complex and potentially adverse effects, including those giving rise to serious effects on humans or on valued species or organisms, those which threaten the existing or potential use of an affected area and those causing additional loading which cannot be sustained by the carrying capacity of the environment (Appendix III). General obligations Zimtland, as Party of Convention, shall take measures to: - establish an EIA procedure that permits public participation and preparation of the EIA documentation described in Appendix II (Art. 2.2), - shall ensure EIA is undertaken prior to a decision to authorize or undertake a proposed activity listed in Appendix I (Art. 2.3), - ensure that affected Parties (Quietland and any other Party) are notified of a proposed activity listed in Appendix I (Art. 2.4), - Concerned Parties ( Zimtland and Quietland) shall, at the initiative of one Party, enter into discussions on whether one or more proposed activities not listed in Appendix I is or are likely to cause a significant adverse transboundary impact and thus should be treated as if it or they were so listed. Where those Parties so agree, the activity or activities shall be thus treated (Art. 2.5), - provide, an opportunity to the public in the areas likely to be affected to participate in relevant EIA procedures regarding proposed activities and shall ensure that the opportunity provided to the public of the affected Party is equivalent to that provided to the public of Zimtland (Art. 2.6). 2

3 Notification Zimtland authorities shall notify any Party which it considers may be an affected Party as early as possible and no later than when informing its own public about that proposed activity. (Art. 3.1) This notification shall contain: (a) Information on the proposed activity, including any available information on its possible transboundary impact; (b) The nature of the possible decision; and (c) An indication of a reasonable time within which a response is required. (Art. 3.2) If the Quietland authorities show no intent to participate in EIA process, on Zimtland authorities is to decide whether the EIA than will be carried out on the basis of its national law. If the Quietland authorities show desire to participate in EIA procedure, Zimtland authorities shall provide: (a) Relevant information to Quietland regarding the EIA procedure, including an indication of the time schedule for transmittal of comments; and (b) Relevant information on the proposed activity and its possible significant adverse transboundary impact. (Art. 3.5) EIA documentation preparing and consultations Zimtland shall furnish the Quietland authorities with EIA documentation, as appropriate through a joint body where one exists. Zimtland and Quietland authorities than shall arrange for distribution of the documentation to the authorities and the public in the areas likely to be affected and for the submission of comments to the competent authority of the Zimtland, within a reasonable time before the final decision is taken on the proposed activity (Art. 4.1 and Art. 4.2). Detailed content of EIA documentation is defined in Appendix II of this Convention. After completion of the EIA documentation, Zimtland authorities shall enter into consultations with the Quietland authorities concerning, inter alia, the potential transboundary impact of the proposed activity and measures to reduce or eliminate its impact. (Art. 5, paragraph 1). The Parties than shall agree, at the commencement of such consultations, on a reasonable timeframe for the duration of the consultation period. (Art. 5, paragraph 2). Final decision In the final decision on the proposed activity, due account should be taken of the outcome of the EIA, including the EIA documentation, as well as the comments thereon received and the outcome of the consultations of the Parties (Art. 6.1). Zimtland shall provide to the Quietland authorities the final decision on the proposed activity along with the reasons and considerations on which it was based (Art. 6.2). However, if additional information on the significant transboundary impact, which was not available at the time a decision was made and which could have materially affected the decision, becomes available to a concerned Party before work on that activity commences, that Party shall immediately inform the other concerned Party. If one of the concerned Parties so requests, consultations shall be held as to whether the decision needs to be revised (Art. 6.3). 3

4 At the request of any Party, Concerned Parties shall determine whether, and if so to what extent, a post-project analysis shall be carried out. Any post-project analysis undertaken shall include, in particular, the surveillance of the activity and the determination of any adverse transboundary impact (Art. 6.3). Post-project analysis At the request of any Party, Concerned Parties shall determine whether, and if so to what extent, a post-project analysis shall be carried out. Any post-project analysis undertaken shall include, in particular, the surveillance of the activity and the determination of any adverse transboundary impact (Art. 7.1). Objectives include (Appendix V): (a) Monitoring compliance with the conditions as set out in the authorization or approval of the activity and the effectiveness of mitigation measures; (b) Review of an impact for proper management and in order to cope with uncertainties; (c) Verification of past predictions in order to transfer experience to future activities of the same type. When, as a result of post-project analysis, the Party of origin (Zimtland) or the affected Party (Quietland) has reasonable grounds for concluding that there is a significant adverse transboundary impact or factors have been discovered which may result in such an impact, it shall immediately inform the other Party. The concerned Parties shall then consult on necessary measures to reduce or eliminate the impact (Art. 7.2). Dispute settlement If a dispute arises between Parties about the interpretation or application of this Convention, they shall seek a solution by negotiation or by any other method of dispute settlement acceptable to the parties to the dispute (Art. 15.1). If the dispute is not resolved, they settle the disputes with the means they accepted within this Convention Submission to the International Court of Justice or Arbitration (Art. 15.2). AARHUS CONVENTION Introduction 1998 Aarhus Convention requires public participation for all decisions on whether or not to permit or renew permission for industrial, agricultural, waste management, infrustructural and construction activities, listed in the Annex I to the Aarhus Convention, as well as other activities which may have significant impact on the environment. Basis for public participation Since the airport construction is included in the Annex I ( airports with basic lenght 2,100 meters and more - Annex I (8.(a)), there is a need for the public participation in decision-making process. If the Zimtland airport 1 basic runway length is less than 1 For the purposes of this Convention, "airport" means an airport which complies with the definition in the 1944 Chicago Convention setting up the International Civil Aviation Organization (Annex 14). 4

5 2,100 meters, it can be expected for the Quietland and Zimtland authorities to make decision on proposed activity not listed in Annex I, which may have a significant effect on the environment. Parties than shall determine whether such a proposed activity is subject to these provisions (Article 6.1.(b)). According to Aarhus Convention (Art 2.4) the public is one or more natural or legal persons; and, in accordance with national legislation or practice, their associations, organisations or group. The public concerned is defined (Art. 2.5) as those affected or likely to be affected by environmental decision-making; those having an interest in environmental decision-making; and; those non-governmental organisations promoting environmental protection and meeting any requirements under national law, which shall be deemed to have an interest. The public shall have access to information, have the possibility to participate in decision-making and have access to justice in environmental matters without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or an effective centre of its activities (Art. 3.9.) Access to environmental information The requested environmental information shall be made available both to Zimtland and Quietland public, as soon as possible and at the latest within one month after the request has been submitted, unless the volume and the complexity of the information justify an extension of this period up to two months after the request (Art. 4.2.) The public concerned shall be informed, either by public notice or ndividually as appropriate, early in an environmental decision-making procedure, of the fact that the activity is subject to a national or transboundary environmental impact assessment procedure (Art. 6.2.(e)). Public participation Aarhus Convention is giving key requirements for public participation, and those are: early notification in a timely and effective manner, plus elements of the notification document (Art. 6.2.), reasonable timeframes for effective participation (Art. 6.3), early public participation, when all options are open and effective participation can take place (Art. 6.4), free access to information as soon as it becomes available (Art. 6.6), public participation procedures allowing the public to submit comments in writing, or at public hearing or inquiry (Art. 6.7), Taking account of EIA in decision-making in accordance with the Aarhus Convention: Each party shall ensure due account of the outcome of public participation in the decision (Art. 6.8), Each party shall ensure that public authorities promptly inform the public 5

6 when a decision has been taken. The text of the decision, along with the reasons and considerations upon which it is based, needs to be publicly accessible (Art. 6.9). Access to justice Each Party shall, within the framework of its national legislation, ensure that any person who considers that his or her request for information has been ignored, wrongfully refused, inadequately answered, or otherwise not dealt, has access to a review procedure before a court of law or another independent and impartial body established by law (Art. 9.1). CONCLUSIONS EIA procedure has to ensure that significant issues of airport construction are identified, project related information is gathered, alternatives are considered, to avoid preconception and inaccuracies in analysis, identify local values and preferences and to select best alternative. To consult people likely to be affected by proposal and to obtain local input into the design of airport alternatives and mitigation measures, the process should: cover all identified stakeholders, be open and transparent (steps and activities are to be comprehensive), relevant (focused on the issues that matter), fair to any stakeholder, responsive to stakeholder requirements and input, credible. Copyright by