February 2015

Green democracyDr. KECSKÉS, Gábor PhD. Senior lecturer (Széchenyi István University)Research fellow (Hungarian Academy of Sciences)

Other pillars and derivatives of green democracy

•Access to justice

•Capacity building

•EIA (env’l impact assessment)

•„Green rights” in Strasbourg

•Nuclear energy and the protection of the environment

My focus

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Aarhus Convention (green democracy convention) – italics and underlinings are mine

•Article 4 – access to environmental information(1) Each Party shall ensure that (…) public authorities, in response to a request for environmental information, make such information available to the public, within the framework of national legislation, including (…) copies of the actual documentation (…)

•Article 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 under article 4 has been ignored, wrongfully refused, whether in part or in full, inadequately answered, or otherwise not dealt with in accordance with the provisions of that article, has access to a review procedure before a court of law or another independent and impartial body established by law.

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Access to justice

Other requirements:

•such request shall be free of charge or inexpensive for reconsideration by a public authority or review

•Final decisions (…) shall be binding on the public authority holding the information. Reasons shall be stated in writing, at least where access to information is refused under this paragraph.

2. Each Party shall, within the framework of its national legislation, ensure that members of the public concerned

(a) Having a sufficient interest

or, alternatively,

(b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition,

have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission

Access to justice

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• What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law

• the provisions shall include the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.

• Para. 3: each Party shall ensure that, where they meet the criteria (upon the convention and national law), if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment .

• Para. 4: the procedure shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.

Access to justice

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4th pillar of green, environmental democracy (not a declared but an interlinking pillar – implicit in Aarhus?)

•in order to increase the role and efficiency of public participation within the processes mentioned before

•capacity building shall be introduced by means of manpower (education, personal and professional skills) and financial resources towards institutions, think tanks, NGOs, etc. (key activities: promotion & monitoring of access to information, public participation and access to justice)

•role of ombudsperson (green ombudsman) – Hungary (deputy commissioner for fundamental rights in-charge of the interests of the future generations)

•information, cooperation and campaigning for such achievements (strengthening their capacity to act or highlight the problems)

•green lobby (limited possibilities in comparison with the business lobby) - how to handle and cope with persons and institutions (experience, differing interests, tradition of lobbying, for profit-non-profit, number of actors from the lobbyist side)

•allies on the side of the EU Commission – problem: the affected parties can over-dramatize the issue in order to get attention (and lobby power) from the media, policymakers, stakeholders, etc.

It is a process of education, training, financing and the self-identification of green NGOs (empowerment) – to find their voice and skills – to let the people be informed and interested – hence, CB is a crucial issue for this century

Capacity building

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1991 Espoo Convention on EIA

Article 1(vi) "Environmental impact assessment" means a national procedure for evaluating the likely impact of a proposed activity on the environment

(vii) "Impact" means any effect caused by a proposed activity on the environment including human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interaction among these factors , it also includes effects on cultural heritage or socio-economic conditions resulting from alterations to those factors

(viii) "Transboundary impact" means any impact, not exclusively of a global nature, within an area under the jurisdiction of a Party caused by a proposed activity the physical origin of which is situated wholly or in part within the area under the jurisdiction of another Party

Process cycle (7 elements): notification – preparation of EIA documents – consultation on this document – final decision – post-project-analysis – cooperation – research programmes

APPENDIX I

LIST OF ACTIVITIES

2. Thermal power stations and other combustion installations with a heat output of 300 megawatts or more and nuclear power stations and other nuclear reactors (except research installations for the production and conversion of fissionable and fertile materials, whose maximum power does not exceed 1 kilowatt continuous thermal load).

3. Installations solely designed for the production or enrichment of nuclear fuels, for the reprocessing of irradiated nuclear fuels or for the storage, disposal and processing of radioactive waste.

EIA

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No clear recognition of green rights (expressis verbis), neither the 1950 Convention, nor the protocols refer to explicit regulation on this issue

But: the practice and precedents of the ECtHR (environmental issues are drawn from the right to respect for private and family life – Article 8) – inherent content

-López Ostra c. Spain (1994) – air pollution, Fadeyeva c. Russia (2005) – air pollution, Deés c. Hungary (2010) – noise „pollution”

-EctHR’s very active and has innovative interpretation

Green rights in Strasbourg

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Nuclear safety (safety refers to environmental and technical issues, security refers to issues attached to arms, nuclear weapons and the usage of nuclear energy by dangerous entities)

•Paris Convention on Third Party Liability in the Field of Nuclear Energy, Paris, 1960

•Vienna Convention on Civil Liability for Nuclear Damage, Vienna, 1963

•Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water, 1963

•Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (Assistance Convention), Vienna, 1986

•Convention on Early Notification of a Nuclear Accident (Notification Convention), Vienna, 1986

•Convention on Nuclear Safety, Vienna, 1994

•Comprehensive Test Ban Treaty, 1996

Nuclear treaties – no clear and concrete reference to environment (just general prevention and precaution requirements)

Nuclear energy and the protection of the environment

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Facts

-fictional EU-member state: Utopistan (a contracting party to Aarhus Convention, Espoo Convention)

-the Utopist government desires to launch the nuclear energy project in the country (nuclear new build – till now, Utopistan is a nuclear-free country)

-Plans for the place of the power plant: Debate City (located 5 km from the border of Utopistan and Greenland)

-Simulation of negotiations among the affected parties

1.Central Government of Utopistan

2.Local Government of Debate City

3.Green NGOs

4.Local public

5.Representative of Greenland

-Aim and goal: a solution which is acceptable for all interested parties (if solution can be drawn)

-be creative, ready for compromise and agreement but never give up your special interest and principles

-all tools and forms of peaceful negotiations can be used (usage of language of diplomacy, etc.)

Case study

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Mintacím szerkesztése

Thank You (on behalf of the affected parties)!

Comments are warmly welcome at

horvg@sze.hu

kecskesg@sze.hu