New Initiatives in Environmental Legislation in Europe

Civil Liability

A New Step in Democracy?

(This article is sequel to article published in UNS 599)

Evelina Rioukhina, UNECE

May – a time of activity in the United Nations Office at Geneva with an extremely busy calendar for meetings. I would like to draw attention to one such meeting within the United Nations Economic Commission for Europe (UNECE)—the Intergovernmental Working Group on Civil Liability for the damage caused by industrial accidents on transboundary waters.

It is unique in several ways. First of all, it is the first legally binding instrument which is being elaborated within the scope of the two UNECE Conventions: the Convention on the Protection and Use of Transboundary Watercourses and International Lakes and the Convention on Transboundary Effects of Industrial Accidents.

Both these conventions are important in their own right: one covers transboundary waters which involves vital issues of the security and safety of water as the basic necessity of our lives and health; the other protects us from consequences of industrial accidents.

For the World Day for Water, which was celebrated 22 March, the joint Conventions Secretariat delivered the following alarming statement: “Worldwide some 2.4 billion people still lack access to basic sanitation and 1.2 billion, or one in five, lack safe drinking water. In Europe alone, 120 million people, i.e. one in seven of the total population, do not have access to safe drinking water and adequate sanitation. At the same time precious water continues to be wasted and polluted. In the UNECE region as a whole, the direct cost in terms of clean water that is unaccounted for, because it is lost during distribution for instance, has been estimated at some $10 billion a year ».

The danger of industrial accidents should not be underestimated. Sixteen years ago, I personally experienced such a disaster which took place not far from where I was walking. It was a sunny spring day and nothing announced danger. The fact that we learned about the tragedy from the media several days later was even worse. If we could have learned about it immediately, something might still have been done, or individual measures taken. This was the Chernobyl disaster, which shocked the countries of the then Soviet Union, the rest of Europe and the world. The consequences were so dramatic, that they will affect generations to come. At that moment it became clear that “the bell tolls for Europe” (paraphrasing the famous words of the writer Hemingway), and perhaps that the bell tolls for our planet, for our Earth, for our common home.

Unfortunately, this bell keeps tolling. In the course of the last two years we have witnessed – and this is only in Europe—three accidents that have caused severe damage either to human health or the environment, or to both. A cyanide spill at Baia Mare in northern Romania resulted in widespread pollution of the Tisza and Danube Rivers and damaged drinking water supplies. Later, there was an explosion at a fireworks factory in Enschede in the Netherlands. Finally, several months ago an explosion at the AZF (Azote de France) fertilizer production plant on the outskirts of Toulouse made headline news in France and abroad. Twenty nine people were reported dead and close to 500 were injured, some of them seriously. What is clear is that in spite of the huge efforts made to prevent industrial accidents, both on the part of the authorities and by industry itself, economic activities and especially those that use hazardous substances are far from being risk-free.

How to protect countries and their populations? Of course, many initiatives have been put forth, several legal instruments created, many important conventions and treaties entered into force such as the UNECE conventions which marked their tenth anniversary last month. And if there exists a special legal regime for liability regarding nuclear accidents similar to Chernobyl, no such regime is currently in force regarding other industrial accidents similar to those described above. Attempts at connection with industrial accidents or liability for such accidents were made, but they ended in the formulation of beneficial conventions (such as the Lugano Convention on environmental liability) and they have not worked as expected. Although ably drafted by skilled legal experts, they remain the Conventions on paper. Perhaps, they were not tailored to the peculiarities of the transition economies, perhaps they did not foresee all necessary provisions, or perhaps the provisions are too vague and far from reality. At any rate, the results are not up to expectations.

New times require new approaches. Something different, something unique should be elaborated while still conforming to the norms of international law, national legislations, as well as to the realities in the countries. The effort should go further – not only defend the interests of the countries, i.e. member-states, but also and mainly the interests of the individuals or group of populations affected. There was nothing of the sort before and in this sense the new legal instrument is particularly unique. One article of the draft document makes clear reference to the UNECE Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, which is considered as “the door to democracy in transition economies”, and the reference to the Aarhus Convention in the draft of the new legal instrument confirms basically the new approach. This reference makes it clear that the individual is the centre of attention, with the guarantee that he/she will have access to justice, protection, and arbitration.

I do not want to overload this article with complicated legal terms, except to mention that each single article, each single line, each single word in the forthcoming document is being written and rewritten, discussed and rediscussed. This is the third round of the intergovernmental negotiations, and not only is the number of participating states growing, but the involvement of representatives from all spheres concerned speak for itself: they come from the national ministries of environment protection, of national committees of emergency situations or from agencies that directly deal with industrial accidents, in addition to lawyers of all kinds including those from the legal department of ministries for foreign affairs and the best minds in law and legislation of academia.

Negotiations are conducted in close collaboration with the European community, which holds one of the vice-chairs of the negotiation process. Negotiations are pursued in close consultations with the Permanent Court of Arbitration, which provides extensive services and shares its broad experience in drafting of such documents. The European Chemical Industry Council and the Regional Environmental Centre for Central and Eastern Europe are also active players in the negotiation process. The negotiations also involve NGOs, which is in itself a democratic way of procedure. What is also unique is the participation of insurance companies at different levels, including the European Insurance Committee.

All this gives hope that this time the effort is not in vain, and that this will not be just another fine piece of parchment lacking substance. This time it will work, this time it should work. The accident in Romania and further accidents mentioned here show that any delay might be drastic.

For the moment the specificity of this “Protocol on Civil Liability” (its possible title) is that it is focused directly on trans-boundary waters and the damage caused to such waters by hazardous activities. Its purpose is to put life into the commitment of the Rio Summit, where the ministers who attended undertook to draw up a document on the protection of trans- boundary water and on civil liability. Considerable efforts were undertaken within the UNECE Conventions Secretariat, within the Environment and Human Settlement Division, within the Economic Commission for Europe to convene the special session last July and to initiate the intergovernmental negotiating process. There has been hard work behind the scenes, but progress is evident. Today is the third reading of the draft document. As a next step – meetings are scheduled for September and November of this year and, if necessary one more meeting will be conducted in the beginning of 2003 so that the document can be ready for signature at the European Conference of Environmental Ministers in May 2003.

The Secretariat, participants, member-countries are satisfied with the results of all intergovernmental meetings conducted so far and optimistic about the negotiating process. Increasing interest from other international organisations and even some interest from countries, which are not in the ECE region is a first sign that the process might go further. The substance of the protocol concerns not only Europe. Countries of the ECE share also trans-boundary waters with Asian, Middle East and Arab States and even with Mexico, and Water Convention also applies to Macao ! It is clear that even minor accidents in some near-boarder regions might affect bordering states. We all know, that there is no guarantee from natural disasters, which can occur and cause dramatic damage to resources, but in terms of protection from industrial accidents and related security, preparedness and response much remains to be done and being done by the Economic Commission for Europe.

In terms of a legally binding document, this Protocol will be the basic document for Europe, and perhaps then it might be an example of interregional international mechanism regulating the mitigation of consequences of accidents and transboundary damage they might cause to water resources. This new approach, this new document will not only be aimed at protecting, but will give and guarantee the right to each person to be protected and to protect. And this right is might broader that just legal term “civil liability” because globally speaking, it means to provide and to guarantee secure environment, environment in Europe, environment on our planet for each of us, for our children, for future generations.

Afterword: The speech of General Secretary “Towards a Sustainable Future” appeared the day I finished the article. In this speech Mr. Kofi Annan makes clear that we should move from commitments to actions, and gives five specific areas where concrete results are both essential and achievable.

“First is water and sanitation. More than 1 billion people are without safe drinking water. Twice that number lack adequate sanitation. And more than 3 million people die every year from diseases caused by unsafe water. Unless we take swift and decisive action, by 2025 as much as two thirds of the world’s population may be living in countries that face serious water shortage. We need to improve access. We need to improve the efficiency of water use, …and we need better watershed management…” (New York, 14 May 2002).

This confirms again the importance of our goals. As for the Protocol, this is further challenge to put life into this new document.