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The Barcelona Convention System as an International Trust Regime: The Public Participation Aspect

Monday, 12 November 2012
by Evangelos Raftopoulos, Professor of International Law, Panteion University of Athens, Founding Director, MEPIELAN Centre, Greece
The Barcelona Convention System as an International Trust Regime: The Public Participation Aspect
An Overview

As I have suggested some years ago and ever since[1], the Barcelona Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean and its seven Protocols, the so-called Barcelona Convention system (BCS)[2] –  along with all regional or global conventional environmental regimes – should be constructively explained as a conventionally determined international trust regime. The BCS sets up a conventional regime of international common interest (ICI) governing the protection of the marine environment and the resources of the Mediterranean in a sustainable manner so that the needs of present and future generations should be met in an equitable manner.

This approach substantially and effectively contributes to the sustainable governance of the BCS – and of any conventional environmental regime – reinforcing its legitimation basis related to its continuous, inter-subjective building of ICI in the context of a polycentric international order. Encompassing both the imperative of intergenerational equity and sustainability, and the need for greater governmental accountability to achieve it, the international trust approach constructively brings out the fiduciary aspect of governance of a conventional environmental regime (CER). At the same time, it strengthens our spirit providing a creative and decisive direction towards the development, at all levels, of a more responsible, more sustainably effective, more participatory, more visionary and pragmatic approach to the governance of conventional environmental regimes.

In essence, the public trust approach to the BCS may be associated with the contemporary approach to the public trust doctrine (PTD), as is well established in the US, emanating from the English Common Law of Charitable Trust, and widely internationalized, in an expressed or implied form, in the Constitutions and Statutes of many States all over the world[3]. And it is worth underlining that, in its contemporary approach, the PTD is extended to environmental governance and projects conservationist principles to natural resources, both aquatic and terrestrial, and it generates much more potential. It is a “fiduciary” institution which creates a legal status for the sovereign to hold and govern natural resources in trust for its people, protecting and preserving the environment and resources as a unit in a sustainable manner, for present and future generations. In doing so, it fosters the democratization of decision making and broadly enlightens the qualities in the evolutionary management of public resources ensuring that they would not be lost in low visibility administrative decisions[4].

The Trust Evidence of the Governance of the BCS Regime


In its Preamble, the Barcelona Convention pronounces a far-reaching communitarian approach: it declares that “the marine environment of the Mediterranean Sea Area” is “common heritage for the benefit and enjoyment of present and future generations” and, as a result, the Contracting Parties are responsible for its preservation and sustainable development[5]. The Preamble of the last and most innovative Protocol to the Convention, the ICZM Protocol (2008), makes a step further: it states that the coastal zones of the Mediterranean Sea “are the common natural and cultural heritage of the peoples of the Mediterranean” and, as a result, “they should be preserved and used judiciously for the benefit of present and future generations”[6].

A clear evidence of the trust nature of the governance of the regime of the BCS is to be found in the language of the general obligations. Under Article 4 of the Barcelona Convention, the Contracting Parties are vested with the general obligation-duty, jointly or individually, “to prevent, abate, combat and to the fullest possible extent eliminate pollution of the Mediterranean Sea Area and to protect and enhance the marine environment in that Area so as to contribute towards its sustainable development”. Simultaneously, they are under the duty to implement the Mediterranean Action Plan by taking “appropriate measures”, and, further, to pursue the protection of the marine environment and the natural resources of the Mediterranean as an integral part of the development process, “meeting the needs of present and future generations in an equitable manner”. In doing so, they are entrusted with the application of the precautionary principle, the polluter pays principle, the EIA procedures at national and transnational level, and the promotion of ICZM.

Interestingly enough, the Barcelona Convention and its Protocols, also contain general obligation-duties and rights-powers effectively contextualizing the governance of the conventional regime (e.g. the relational obligation-duty of the CPs to act, when applying the BCS, in conformity with international law and in consistency with the LOSC or applicable IMO Conventions, the Basel Convention or the UN Biodiversity Convention, or, their relational obligation-duty to promote, individually or collectively and through relevant international organizations the implementation of the BCS to all the non-party States)[7].

The above framework identification of the trust evidence of the BCS becomes more specified by a scaled adoption of a series of performative Protocols. This entails a consensual determination of those aspects of ICI covered by the BCS trust regime governing sustainably the Mediterranean marine environment and its natural resources. This all-embracing international trust regime refers – so far – to:
  • the protection of the marine environment from dumping or incineration at sea, ship pollution and emergencies, land-based sources pollution and pollution from the transboundary movement and disposal of hazardous wastes
  • the management of offshore hydrocarbons recources in the seabed and the subsoil of the Mediterranean Sea
  • the protection and management of biodiversity and specially protected areas in the Mediterranean and the coastal zone of the Mediterranean
It is worth stressing that, in this process, the specifying aspects of the international trust regime have two basic contextual characteristics: first, they are not exhaustive – further aspect-specification may be implied by the operation of the ICI purpose of the conventional environmental regime; second, they are constituted and evolved gradually and in response to the regime exigencies – their specification through performative Protocols and their revision is scaled and is generated by negotiated consensus establishment in a time-space context[8].

The Trilateral Structure of the Trust Environmental Governance

Envisaging BCS as an international trust regime, we need to focus on the determination of its trilateral legal structure as required by the trusteeship concept: the trustors/settlers, the trustees and the beneficiaries.

As Trustors or Settlors should be considered the Contracting Parties to the BCS (the Mediterranean States and the EU) establishing a CER of ICI. They constitute Trustors or Settlors in two senses: of collective founders of the BCS as having negotiated the consensus-establishment of the conventional regime (Mediterranean Trustors or Settlors); and of collective representatives of international community as having negotiated and identified the scope of the contextual reference of the BCS to related global conventional regimes or established international practices (International Community Trustors or Trustees). In these two combined senses, they serve ICI.    

At the same time, the Contracting Parties should also be considered as ICI regime Trustees: they are vested with powers and duties to govern, as international public trustees, the designated/specified aspects of the trust regime for the benefit of the present and future generations. Likewise, they constitute Trustees in two senses: of Mediterranean Trustees for the implementation or revision of the BCS in their individual-collective identity; and of International Community Trustees for the effective and expanding operation of the contextual inter-linkages of the BCS with related global conventional regimes or established international practices, thus serving ICI.

The people concerned should be considered as Beneficiaries: the Contracting Parties as ICI regime trustees are responsible to all beneficiaries (present and future generations) whereas the current generation is both beneficiary and trustee to the future generation. Acting as Beneficiaries, the public, whatever their legal identity, is empowered to participate in, and hold the Contracting Parties accountable to, reasoned intergenerational decision-making regarding trust governance of the specified aspects (Protocols) of the international trust regime of the BCS. Non-State Actors participating in the horizontal governance partnership with the Contracting Parties – the International Trustees, hold the role of Beneficiaries towards the International Trustees and the role of Relational Trustees towards future generations. And this hybrid role of Non-State Actors as Beneficiaries and Relational Trustees is entirely consistent with the sustainable management of trust resources.

The Public Participation Aspect: The Public as Beneficiaries

At the heart of the public trust approach to the BCS lies the safeguarding of the interests of the beneficiaries – “the present and future generations. A trust environmental governance requires a stronger, more meaningful participation pattern of the public-as-beneficiaries or intergenerational beneficiaries. As a result, the fiduciary aspect of environmental governance will be specifically implemented facilitating the enforceability of the terms of the conventional trust regime and the participatory democratization of its legislative or administrative decision making. It will provide the basis for the development of a coherent, compatible and complementary right to public participation as beneficiaries (Access to information, Public Participation, Access to Justice), thus effectively liberating from the existing low visibility administrative decisions and poor public decision-making of the still-dominating state centric model with respect to the governance of trust resources. Of decisive importance, in this regard, is the normative impact of the relational external context and its specific developments, provided by the Aarhus Convention or the EU relevant legislation.

The Public Participation Evolving Pattern of the BCS

Article 15 of the Barcelona Convention on public information and participation faithfully retains a state-centric backbone. It refers to the standard abstract conception of the public and the widely discretionary duty of the Contracting Parties Parties to give adequate effect, through its national system and its competent authorities, to the participatory right of the public, while it is silent as regards the important third pillar, access to justice. The Contracting Parties are vested with the duty “to ensure” that their competent authorities will give the public appropriate access to environmental information and the opportunity to participate in the decision-making process. Its application is further implied in the implementation of all its seven Protocols. In two of its Protocols, however, the right to public participation is specifically formulated in more advanced terms – although there is a considerable qualitative difference between these two formulations.   

Thus, the Specially Protected Areas and Biodiversity Protocol, 1995, provides more specified aspects of the duty to information: to give appropriate publicity to the established of specially protected areas, to inform the public of the interest and value of specially protected areas and species and of their scientific knowledge and promote it to education programmes. It, also, makes a more advanced reference to the duty to public participation: to promote participation of the public and their conservation organizations in measures that are necessary for the protection of the SPAs and species… including EIAs, and to include in the planning and management measures for each specially protected area the active involvement of local communities and populations[9].

The Integrated Coastal Zone Management Protocol, 2008, marking a new generation of sustainability-oriented Protocols, provides a distinctly specified framework for public information and participation, even incorporating some the fundamendal standardized language of the Aarhus Convention.

More specifically, Article 6, refers, inter alia, to the duty of the Parties to ensure “appropriate governance allowing adequate and timely participation in a transparent decision-making process by local polulations and stakeholders in civil society concerned with coastal zones”. Article 14, prescribes the duty of the Parties to provide information “in an adequate, timely and effective manner” so as to ensure efficient governance through effective public participation. As is more specifically provided therein, the Parties “with a view to ensuring efficient governance throughout the process of the integrated management of coastal zones” have the duty to “take the necessary measures to ensure the appropriate involvement in the phases of the formulation and implementation of coastal marine strategies, plans and programmes or projects, as well as the issuing of the various authorizations, of the various stakeholders”. These stakeholders are indicated, but also general forms of participation are indicatively prescribed, involving inter alia “consultative bodies, inquiries or public hearings, and may extend to partnerships”. More importantly, Article 14 makes the important step forward to provide the stakeholders’ right to access to justice in this regard: the Parties have the duty to make available the right to recourse to legal or administrative Justice “to any stakeholder challenging decisions, acts or omissions” presumably by private persons and public authorities, as is stated in Article 9(3) of the Aarhus Convention. In addition, this duty of the Parties is expanded to ensure the right of the stakeholders to access to other independent means of settlement of disputes, “other than a court of law” in the wording of the Aarhus Convention (Article 9(1), of a political (mediation) or a mixed character (conciliation). Such a right to access by stakeholders “is subject to the participation provisions established by the Parties with respect to plans, programmes or projects concerning the coastal zone”.

On the other hand, the participation of the stakeholders in plans, programmes or projects concerning the coastal zone requires the development of a systematic, long term strategy of information which is a sine qua non condition for generating a meaningful and knowlegable participation of stakeholders in these plans, programmes and projects. For this purpose, Article 15 of the Protocol provides for the duty of the Parties to carry out awareness-raising activities on ICZM at all levels (national, regional and local) and to “develop educational programmes, training and public education on the subject”, and further to establish or support specialized national research centres providing interdisciplinary scientific research, thus advancing the relevant knowledge, contributing to public information and facilitating public and private decision-making.

The Relational Impact of the Aarhus Convention as a Supplementary Context

The public trust approach would require an effective harmonization of public participation in all Protocols being appropriately supplemented by the 1998 UNECE Aarhus Convention[10]. The relational impact the Aarhus Convention on the normative development and construction of Article 15 of the Convention may be approached to from various, interrelated, scaled and dynamically operating ordering aspects.  

First, the Aarhus Convention constitutes the normative supplementary context for those Contracting Parties of the BCS which have ratified this Convention. Twelve Contracting Parties, including the EU, have done so[11] and one has signed it (Monaco) for which the Convention has a relevant normative and evidentiary value[12].

Second, with respect to the rest of the Contracting Parties which are not members of the Economic Commission of Europe, the Aarhus Convention constitutes a normative referential context which should normally be taken into account when implementing Article 15 of the Barcelona Convention and, as such, its impact can be substantial for a number of reasons.

- In the first place, being already obligatory for more than a half of the Contracting Parties, the Aarhus Convention sets up the specific standards and procedural rights to be appropriately applied by them in context and within the objects and purposes of the BCS:  the specification of these standards and procedural rights takes into consideration the particularities of the context of the BCS, the objects and purposes of the established conventional regime and its developing practice, since they acquire a separate regime existence.

- In the second place, the regime established by the Aarhus Convention contains certain distinctive innovative elements which clearly reinforce the approximation of the function of the two contexts in the framework of the BCS.  Thus, it provides for the possibility of expanding the scope of its geographical application and, hence, of relativizing its regionality: Article 19 (3) states that any other State that is simply a Member of the United Nations may accede to the Convention upon approval by the Meeting of the Parties, thus indicating the de-regionalization of its standards and procedural rights and, in effect, the possibility of its eventual transformation into a conventional regime with more global/extra regional characteristics. Moreover, it lays down, under Article 3(7), the general duty of each Contracting Party to promote the application of the principles of the Convention in any international environmental decision-making process and within the framework of any international organization when dealing with matters relating to the environment. This duty is armed with the innovative Almaty Guidelines on Promoting the Application of the Principles of the Aarhus Convention in International Forums, 2005,[13] subsequently supported by Decisions III/4[14] and IV/3[15] of the Meeting of the Parties to the Aarhus Convention, which are declared to serve as “a source of inspiration to Signatories and other interested States, as well as to multilateral environmental agreements and other international forums, non-governmental organizations and other members of the public having an interest in promoting the application of the principles of the Convention in international forums”[16].

In the framework of the BCS, the Aarhus Convention should work not only as “a source of inspiration” for these Contracting Parties but also as a concrete relational platform generating a coherent, comprehensive and contextually relevant approach to the specification of Article 15 of the Barcelona Convention, already implemented, at various scales and levels, by the members of the ECE Contracting Parties.

Direct evidence of this is to be found in the implementation of declarative instruments of the BCS. Thus, in 2004, the development of guidelines concerning public participation for the preparation, adoption, implementation and follow up of National Action Plans (NAPs) in the framework of the Strategic Action Programme (SAP) for the implementation of the amended Land-Based Protocol, 1980, made reference to the Aarhus Convention because it represented “the most comprehensive available standard that has been agreed upon in this field”[17]. Moreover, the Mediterranean Strategy for Sustainable Development (MSSD) declares that, in order to achieve one of its four major objectives (“Improve governance at the local, national and regional levels”), the principles of the Aarhus Convention should be applied to promoting the involvement of civil society in achieving sustainable development, and  that the ratification of the Aarhus Convention constitutes an indicator for the MSSD follow-up[18].




Endnotes

  1. E. RAFTOPOULOS, “The Barcelona Convention System for the Protection of the Mediterranean Sea Against Pollution : An International Trust at Work”, The International Journal of Estuarine and Coastal Law, Vol. 7, 1992, pp. 27-41; Studies on the Implementation of the Barcelona Convention : The Development of an International  Trust Regime, Ant. N. Sakkoulas Publishers, Athens, 1997.
  2. The Barcelona Convention (1976, amended 10 June 1995) is a framework convention being specifically implemented by the following seven Protocols: The Protocol for the Prevention of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft or Incineration at Sea (1976, amended 10 June 1995, amendment not yet  in force) (“the Dumping Protocol”); The Protocol Concerning Cooperation in Preventing Pollution from Ships and, in Cases of Emergency, Combating Pollution of the Mediterranean Sea (2002) (“the Prevention and Emergency Protocol”), replacing the Emergency Protocol, 1976; The Protocol for the Protection of the Mediterranean Sea Against Pollution from Land-based Sources and Activities (1980, amended 7 March 1996) (“the LBS Protocol”); The Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (1995) (“the SPA and Biodiversity Protocol”), replacing the SPA Protocol, 1982; The Protocol for the Protection of the Mediterranean Sea Against Pollution Resulting from Exploration and Exploitation of the Continental Shelf and the Seabed and its Subsoil (1994) (“the Offshore Protocol”); The Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements of Hazardous Wastes and their Disposal (1996) (“the Hazardous Wastes Protocol”); and The Protocol on Integrated Coastal Zone Management (2008) (“the ICZM Protocol”). On the initiation of the term “Barcelona Convention System” see E. RAFTOPOULOS, The Barcelona Convention and Protocols – The Mediterranean Action Plan Regime  (Simmonds & Hill Publishing Ltd., London, 1993). Also, T. SCOVAZZI, “The Recent Developments in the ‘Barcelona System’ for the Protection of the Mediterranean Sea Against Pollution”, International Journal of Marine and Coastal Law, Vol.11, 1996, p. 95.
  3. See M.C. BLUMM & R.D. GUTHRIE, “Internationalizing the Public Trust Doctrine”, 44 U.C. Davis Law Review (2012), available at: http://ssrn.com/abstract=1816628   
  4. See, generally, the pioneering article by Sax, J. L. SAX, “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention” 14 UC DAVIS L. REV. (1970) passim.
  5. See Barcelona Convention (1976), Preamble, para. 2.
  6. See ICZM Protocol (2008), Preamble, para. 3.
  7. For express references see e.g. Barcelona Convention (1976), Art. 3, Prevention and Emergency Protocol (2002), Art. 4(2), Hazardous Wastes Protocol (1996), Arts. 6 (4-5), 7(5), 9(8).
  8. E. RAFTOPOULOS, Conventional Environmental Governance and the Mediterranean or PLUS ULTRA (Ant. N. Sakkoulas Publishers, Athens, 2006) passim.
  9. SPA and Biodiversity Protocol (1995), Arts. 19 and 7(2)(c).
  10. Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental  Matters, 1998, 38 ILM (1999), 517. It entered into force on 30 October 2001.
  11. Albania (2001), Bosnia and Herzegovina (2008), Croatia (2007), Cyprus (2003), European Union (2005), France (2002), Greece (2006), Italy (2001), Malta (2002), Montenegro (2009), Slovenia (2004), and Spain (2004).
  12. PERMANENT COURT OF ARBITRATION: Dispute Concerning Access to Information Under Article 9 of  the OSPAR Convention (Ireland v. United Kingdom) (The MOX Plant), 42 ILM (2003), 1118, Dissenting Opinion of Gavan Griffith, 1162-1163. This positively supplements the well-known Article 18 of the Vienna Convention on the Law of Treaties (1969) obliging the signatories to refrain from acts that would defeat its objects and purposes peding ratification.
  13. ECE: Report of the Second Meeting of the Parties to the Aarhus Convention, Almaty, Kazakhstan, 25-27 May 2005, ECE/MP.PP/2005/2/Add. 5, Addendum, Decision II/4, Annex.
  14. ECE: Report of the Third Meeting of the Parties to the Aarhus Convention, Riga, Latvia, 11-13 June 2008, ECE/MP.PP/2008/2/Add. 6, Addendum, Decision III/4, Annex.
  15. ECE: Report of the Fourth Meeting of the Parties to the Aarhus Convention, Chisinau, Republic of Moldova, 29 June-1 July 2011, ECE/MP.PP/2011/2/Add. 1, Addendum, Decision IV/3, Annex.
  16. Almaty Guidelines on Promoting the Application of the Principles of the Aarhus Convention in International Forums, 2005, supra note 13, para 3.
  17. MAP: GEF Project “Determination of Priority Actions for the Further Elaboration and Implementation of the Strategic Action Programme for the Mediterranean Sea” – Common Methodology, UNEP-Athens, 2003, 2. Also MAP: Strategic Action Programme – Public Participation in the National Action Plan (NAPs) for the Strategic Action Programme (SAP) to Address Pollution from Land-Based Sources in the Mediterranean Region, UNEP(DEC)/MED/GEF WG.245/7, 3 Feb. 2004, UNEP/MAP, Athens, 2004.
  18. MAP: Mediterranean Strategy for Sustainable Development – A Framework for Environmental Sustainability abd Shared Prosperity, 14th Ordinary Meeting of the Contracting Parties to the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean and its Protocols, UNEP(DEC)/MED IG.16/7, 27 June 2005, UNEP/MAP, Athens, 2006, 8, Annex 2, 33.

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