Asia Regional Workshop on Stakeholder Engagement in International Waters Management Hanoi, Vietnam, 2-4 April 2008

1. 1
Legal Frameworks for
Public and Stakeholder Engagement
by Carl Bruch
Asia Regional Workshop on Stakeholder Engagement
in
International Waters Management
Hanoi, Vietnam, 2-4 April 2008

2. 2
Why is the legal framework
important for stakeholder
engagement?

3. 3
Overview
Legal framework (within which projects operate)
Public participation in international law
Public participation requirements of international
institutions
Public participation in water-related agreements
National laws
Public participation in the development of
international (waters) agreements and national
laws and regulations
Development of legal frameworks through a
project

4. 4
Public Participation in International Law
Principle 10 of the Rio Declaration (generally considered
to reflect customary international law)
2000 Inter-American Strategy for the Promotion of Public
Participation in Decision-making for Sustainable
Development (ISP) (non-binding)
1998 UN/ECE Convention on Access to Information,
Public Participation in Decision-making, and Access to
Justice in Environmental Matters (Aarhus Convention)
(binding)
Espoo Convention (Transboundary EIA)
SEA Protocol
Similar regional and sub-regional initiatives in Asia (non-
binding) and Africa (binding and non-binding)

5. 5
Public Participation Requirements of
International Institution
Environmental and Social Safeguard
policies of World Bank Group (esp. for
EIA)
Similar policies for ADB and other regional
development banks
GEF requirements

6. 6
Public Participation in
Water-related Agreements
International Law Association Berlin Rules
1992 UN/ECE Convention on the Protection and
Use of Transboundary Watercourses and
International Lakes
1999 Protocol on Water and Health
EU Water Framework Directive (IWRM in EU
member states)
Art. 14: requires States to encourage involvement of all
interested parties in the production, review and
updating of river basin plans
Specific guidance available

7. 7
Public Participation in
Water-related Agreements (2)
1909 International Boundary Waters Treaty
and 1978 Great Lakes Water Quality
Agreements
Public consultation in development and
implementation of integrated Lake-wide
Management Plans
Danube, Lake Ohrid, Lake Tanganyika

8. National Laws
Constitutional provisions
Environmental Impact Assessment (EIA)
Freedom of (Environmental) Information laws
Strategic Environmental Assessment (for plans,
programmes and policies)
[In federal systems, state/provincial laws and policies are
also important.]
Issues
“Implementation gap”
Transboundary application
Language

9. Public Participation in the
Development of Laws
In the development of international waters
agreements
E.g., in the development of the Lake Tanganyika
Convention; UN/ECE Protocol on Water and Health;
1978 Great Lakes Water Quality Agreement; EU Water
Framework Directive
In the development of national laws and
regulations
Private bills
Notice-and-comment rulemaking

10. Development of
Legal Frameworks within a Project
Basin agreements/instruments
Assistance in developing national or
municipal laws or regulations

11. Development of
Legal Frameworks within Project (2)
Goals:
Institutionalize public participation beyond the
end of a project (sustainability)
Provide details [often a weakness in existing
legal regimes]
Facilitate development of a common set of
minimum standards and procedures in a basin

12. Development of
Legal Frameworks within Project (3)
1998 Convention on Cooperation for the Protection and Sustainable
Use of the Danube River
States required to “ensure that their competent authorities are
required to make available information concerning the state or the
quality of the riverine environment in the Danube Basin to any
natural or legal person, with payment of reasonable charges, in
response to any reasonable request, without that person having to
prove an interest, as soon as possible.”
Provided in written, visual, oral, or other data-based form
Narrow exemptions
Providing for “observer status” for stakeholders in ICPDR
meetings
Be informed of all activities
Free access to all documents
Participate in meetings
Take part in programs

13. Development of
Legal Frameworks within Project (4)
2004 Agreement for the Protection and
Sustainable Development of Lake Ohrid
Watershed Committee that includes a civil society
representative from each country
Drafting environmental standards
Completing the necessary legal framework
Developing and implementing strategic action plans
Required to “increase public, NGOs, and other stakeholders’
participation”
Supported by technical Secretariat, with duties for
outreach and public awareness-raising

14. Development of
Legal Frameworks within Project (5)
Convention on the Sustainable Management of Lake
Tanganyika
Legal framework for implementing the SAP
Emphasis on access to info, public participation, and access to
justice – requires all Basin countries to adopt and implement legal
and other measures
Art. 16: Environmental Education
Art. 17: Public Participation – right to participate (esp. through EIA)
and right of appeal
Art. 19: Public Access to Information: state of Lake Basin; planned
development activities; measures taken or planned to be taken to
prevent, control, and reduce adverse impacts; and effectiveness of
those measures. Access is free of charge (“reasonable” charge for
copies).
Allows for stronger measures, as long as compatible with
Convention

15. Development of
Legal Frameworks within Project (6)
Benguela Current Commission Interim Agreement
Secretariat “to facilitate the exchange of information in
order to promote the objectives of this Agreement,
including by ensuring that up-to-date information relevant
to the implementation of this Agreement is disseminated to
all Contracting States and to the public;” [Article 8(3)(i) ]
Article 7(9) "The Commission shall..."
(g) establish mechanisms for interacting with the private sector,
nongovernmental organisations, and other stakeholders and
communities;
(h) ensure that there is adequate consultation with stakeholders in
relation to the development and amendment of the Strategic Action
Programme and other action plans;

16. Questions for Discussion
What are the most significant gaps in existing
legal frameworks governing public participation in
the management of transboundary waters?
How can those gaps be addressed?
What are lessons learned in:
Developing international agreements with provisions
for public participation?
Assisting in development of national or sub-national
legislation or regulations?

17. Pre-testing
Try it with a small sample of the audience
Selected individuals
Focus group
Does it work as expected?

18. Implementation
Available communication tools
Partners for distributing
Materials for media (and other communication
outlets)
Number of copies needed
Account for what is sent out
Staff know how to distribute
Monitor and adjust

19. Evaluation
Measure the effects of the communication
strategy
Knowledge, attitudes, awareness, and skills of
audience
Behavior of target audience(s) and secondary
audience(s)
On the environment