Charting New Waters: Public Involvement in the Management of International Watercourses

Carl Bruch

Carl Bruch is a senior attorney at the Environmental Law Institute (ELI), where he also directs ELI's Africa Program. The author expresses his sincere appreciation to Mark Beaudoin, Samantha Klein, Molly McKenna, Turner Odell, Seth Schofield, Julie Teel, Elizabeth Walsh, and Jessica Warren for their research and comments. Background research for this Article was supported by the U.S. Agency for International Development (USAID) and the John D. and Catherine T. MacArthur Foundation. The views expressed are those of the author, and not necessarily those of the Environmental Law Institute, the USAID, or the MacArthur Foundation. An abbreviated version of this Article will appear in INTERNATIONAL WATERS IN SOUTHERN AFRICA (Mikiyasu Nakayama ed., UNV Press forthcoming 2001).

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Citizens, nongovernmental organizations (NGOs), universities, and other members of civil society have played an essential role in developing and implementing environmental and natural resource laws and institutions at the local and national levels over the past decades. This role has extended more recently into the international arena.¹ This Article examines the emerging norms and practices that guarantee transparency, public participation, and accountability in the management of international watercourses. Particular attention is paid to how these norms may be implemented to improve the management of transboundary watercourses in southern Africa.

When I commenced research on this project, I consulted various experts in international water law to seek their guidance on emerging norms regarding public involvement in managing international watercourses. One senior expert replied that "under customary international law, there is no rule relating to public access to information about the quality and quantity of available water, nor is there any rule about public participation in the management of international water bodies."² As this Article shows, however, while there may as yet be no definitive statement under customary law on the topic, the widespread inclusion of relevant provisions in regional and water body-specific instruments, and in the practice of international bodies, suggests that norms on public involvement are not only emerging, but are rapidly crystallizing. In Africa, evolution of these norms has the added benefit of a "rich tradition of participation in water management" at the local level,³ which can form the basis for similar development at the international level.

Section I reviews the needs for and benefits of public involvement in managing international watercourses. This section also briefly surveys the various international watercourses, global and regional conventions and declarations, and international institutions discussed in this Article. Section II examines mechanisms, norms, and practices which provide citizens and others with access to information about the water quantity and quality in transboundary watercourses, as well as activities that could affect these waters. Section III considers public participation in the negotiation of treaties, in the development of policies and other norms, and in the review and approval of projects. Section IV considers different venues—domestic courts as well as international tribunals and fact-finding bodies—in which citizens may file complaints if a private or public entity is harming or threatening to harm international watercourses (often termed "access to justice"). Section V concludes with an analysis of how public involvement may be advanced within the context of transboundary watercourses in southern Africa.

I. Overview

There are various ways in which the public can become involved in the management of international rivers and lakes. The mechanisms range from making information available, to consulting the public, to empowering the public to file complaints. They are available in both domestic and international forums.⁴ These different techniques can benefit governments, businesses, and the public in innumerable ways.

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Some commentators categorize public involvement into two general approaches. In the "cost-sharing" approach, people donate their expertise, time, and even finances, particularly when there is a close relationship between the affected community and the decision to be made or project to be undertaken.⁵ Thus, villagers will frequently be involved in the decision whether to build a small-scale irrigation system and what form it would take, as well as contributing their labor in developing the system. The cost-sharing approach, however, can become unwieldy with large-scale projects. Yet, many of these projects have a significant risk of adversely impacting poor people, who traditionally have been both disenfranchised and the most impacted. Thus, the "empowerment" approach seeks to affirmatively include those who would not otherwise have a voice in the decisionmaking process.⁶ This approach obtains information about those who could be affected, provides them with information about the potential project (or other decision), consults with them, and ultimately provides them with an opportunity to shape the outcome.

A. Benefits of Public Involvement

At its most basic level, public involvement builds awareness.⁷ Governments and the business community learn about the public's concerns and priorities, and about the environmental and social impacts of their decisions and operations. This knowledge can then substantially improve decisionmaking. The public, in turn, gains insight into the multitude of concerns regarding the management of international waters. This insight can build their capacity to participate and also their respect and support for the decisionmaking process.

Public involvement improves the quality of decisions. Public input can supplement scarce government resources for developing norms and standards, as well as for monitoring, inspection, and enforcement, by identifying environmental threats or violations of applicable laws.⁸ This is particularly true of cost-sharing public involvement, but also of the empowerment approach. By allowing a wide range of members of the public to express their views regarding a proposed project or an unresolved issue, the decisionmakers can expand the knowledge base for decisions. People in communities frequently know the local environmental, agricultural, and social conditions more intimately than government agencies do. This is particularly true for transboundary decisions.

Decisions affecting international watercourses frequently are made by government officials who sit far from the waters in question. As a result, these decisions rarely reflect the interests of the border residents, who frequently are far from the sources of power. Expanding on this theme, Lenard Millich and Robert G. Varady observed that

international agreements that depend on internal political processes may fall short of achieving goals precisely because they do not sufficiently consider the local interests that ultimately determine the extent to which laws are implemented. National and international institutions rarely have incentive to heed realities of the field. Instead high-level policymakers are rewarded for setting ambitious goals without providing the appropriate understanding, tools, and capacity at the local level to implement the measures needed to achieve those goals.⁹

They conclude that "transnational linkages that permit national agencies to speak to each other but remain deaf to local interests are destined to fail."¹⁰

Similarly, decisions made in the interest of national governments do not necessarily reflect the interests of the transboundary ecosystems that are intricately connected to transboundary watercourses.¹¹ Thus, the public has a critical role to play in "representing an ecosystem over and above their national loyalties."¹² By involving the public in the management of these waters, it is more likely that the decisions will respect the long-term ecological interest of transboundary ecosystems.¹³

Public involvement can identify and address potential problems at an early stage. Allowing the public to have access to information about proposed projects and decisions and allowing for public comment can thus save time, energy, and scarce financial resources. When the public is not provided an opportunity to participate, negative reaction to unaddressed (and unresolved) issues can lead to large and sometimes violent protests that stall or halt projects and add significantly to overall costs. For example, the construction of the Pak Mun Dam on a tributary to the Mekong River in Thailand did not include public participation in the assessment process. Although the dam was completed in 1994, the communities affected by the dam have objected to the compensation that they view as inadequate, and the unexpected costs have increased the dam's overhead, thus altering the cost-benefit analysis.¹⁴

In contrast, involving the public in managing international watercourses can improve the credibility, effectiveness, and accountability of governmental decisionmaking processes. Public participation at the outset defuses opposition by allowing the public to have a voice and allowing time to find a solution that is acceptable to all parties. Public involvement ultimately helps to build broad-based consensus for the final decision.

Initiatives by NGOs can facilitate the decisionmaking process. When negotiations over international watercourses [31 ELR 11391] become polarized as governments become locked into their positions, NGOs with a regional focus can, "by highlighting regional and ecosystem-related perspectives, assist in breaking through barriers associated with traditional diplomacy. NGO expertise can also provide important information that may not be available to government negotiators."¹⁵

Involvement also builds public ownership of the decisions and improves its implementation and enforcement, as the public is more likely to respect and abide by the final agreements.¹⁶ Citizens and NGOs can also improve the monitoring of potential violations, particularly when they understand their rights and the standards that apply.¹⁷ They can supplement governmental enforcement efforts by identifying environmental threats or violations of applicable laws. For example, an increasing number of rivers and bays in the United States and in other countries have "Riverkeepers" and "Baykeepers," individuals who investigate and report potentially illegal actions that harm the waters, such as illegal discharge of wastes.¹⁸ Environmental agencies have also established environmental "hotlines" so that citizens can report environmental violations, frequently relating to illegal pollution of waterways.¹⁹ Citizens and NGOs can also play a valuable role in enforcing norms where governments otherwise might be constrained by politics.

In contrast, when the public is not involved in decisions that could affect them, the lack of public support can impede implementation. For example, the World Bank-funded Kampong Improvement Program lacked public participation, which led to apathy on the part of the intended beneficiaries and a failure to maintain the project.²⁰

A number of these reasons for public involvement in the management of international waters were recently explicitly addressed in the 1999 London Water and Health Protocol (London Protocol) to the 1992 United Nations Economic Commission for Europe (UN/ECE) Convention on the Protection and Use of Transboundary Watercourses and International Lakes (Convention on Watercourses and Lakes). Article 5(i) provides that

access to information and public participation in decision-making concerning water and health are needed, inter alia, in order [1] to enhance the quality and the implementation of the decisions, [2] to build public awareness of issues, [3] to give the public the opportunity to express its concerns and [4] to enable public authorities to take due account of such concerns….²¹

While the London Protocol contains perhaps the most thorough enumeration yet in an international agreement of the benefits of public involvement in the management of international waters, a wide range of conventions and international institutions have sought to advance public involvement. The next subsection summarizes these initiatives.

B. Watercourses, Conventions, and International Institutions Considered

In recent years, international conventions and institutions have strengthened the role of the public in the development, implementation, and enforcement of international commitments. Some of these have been general (relating to public involvement in environmental matters), while others have specifically incorporated public involvement into the management of international watercourses.

1. Watercourse-Specific Instruments and Institutions

The Mekong River Commission (MRC) provides one of several case studies in how public involvement is indispensable in managing international watercourses. The 1995 Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin established the MRC as the primary body for managing river-related activities in the lower basin.²² Cambodia, Lao People's Democratic Republic (PDR), Thailand, and Vietnam are parties to the MRC, which replaced earlier committees dating back to 1957. The agreement seeks to promote sustainable development, utilization, management, and conservation of the Mekong River and related resources. The authority to develop water allocation rights on the Mekong and its tributaries is one of the major strengths of the agreement.

The agreement established three management bodies within the MRC: the Council, the Joint Committee, and the Secretariat.²³ The Council is the primary decisionmaking body, consisting of representatives at the ministerial and cabinet level.²⁴ The Joint Committee implements the policies designed by the Council in order to fulfill commitments outlined in the 1995 agreement and formulates the Basin Development Plan which guides development along the Mekong River.²⁵ The Secretariat to the MRC performs administrative and technical tasks.²⁶ The MRC relies on financial support from Member countries, the international donor community, and cooperating agencies.

Likewise, along the United States-Mexico border, two organizations seek to manage the shared natural resources, including the Rio Grande and the Colorado River. The International Boundary and Water Commission (IBWC) was first established in 1889 to implement the boundary and water [31 ELR 11392] treaties between the United States and Mexico.²⁷ In 1993, to address concerns that the North American Free Trade Agreement (NAFTA) did not adequately take into account environmental or labor concerns, Canada, Mexico, and the United States negotiated separate environmental agreements, including a binational agreement between the United States and Mexico establishing the Border Environment Cooperation Commission (BECC).²⁸ The BECC must certify that proposed projects before the North American Development Bank that are located within 100 kilometers (km) of the border (which is a river for approximately 2,000 km) satisfy all the applicable environmental laws and have adequately incorporated community participation. While the BECC does not specifically focus on international watercourses, the projects that it certifies can affect the quality and quantity of the transboundary river that forms the boundary between the United States and Mexico. As such, the BECC's requirements for public involvement in the certification process are relevant to this discussion.

Along the Canada-United States border, the Great Lakes constitute the largest inland freshwater ecosystem in the world.²⁹ In 1909, the International Boundary Waters Treaty (IBWT) established the International Joint Commission (IJC) to prevent and resolve disputes over water quality and quantity in waters along the United States-Canada border.³⁰ With time, the IJC has also come to address transboundary air pollution as well as actually operating hydropower projects that impact transboundary water flows.³¹

As discussed below, the original 1909 treaty established detailed provisions for public participation and access to information that are actively implemented. The treaty also contains specific provisions under the Great Lakes Water Quality Agreement (GLWQA) of 1972³² to develop public information. As amended in 1983 and 1987, the Great Lakes Water Quality Agreement established two binational boards (the Great Lakes Water Quality Board and the Great Lakes Science Advisory Board) and the Great Lakes Regional Offices (in Windsor, Ontario and Detroit, Michigan) to carry out the goals of the treaty.

In Europe, management of the Danube and Rhine rivers has incorporated public involvement. The 1994 Danube River Protection Convention,³³ signed by 11 states, has particularly strong provisions for public access to information. In 1999, the European Community and the nations of Germany, France, Luxembourg, the Netherlands, and Switzerland concluded the Convention on the Protection of the Rhine.³⁴ This convention builds on earlier agreements that had not been as successful (see discussion hereinbelow), as well as the 1987 Rhine Action Programme.³⁵ Additionally, both the Danube River and Rhine River conventions specifically mention the 1992 Helsinki Convention for transboundary watercourses in the UN/ECE region.

The 1990s saw the rapid rise of international commitment to involving the public in the management of Lake Victoria. The Lake Victoria Environmental Management Project, funded by the Global Environment Facility,³⁶ incorporates public participation in the development of projects and policies. In anticipation of the treaty establishing the East African Community, Kenya, Tanzania, and Uganda adopted a Memorandum of Understanding (MOU) on Environment Management that relies on public involvement and specifically addresses Lake Victoria.³⁷ Shortly after the conclusion of the MOU, the parties adopted the Treaty for the Establishment of the East African Community,³⁸ which also contains kernels for developing access to information, public participation, and rule of law in the management of East African natural resources, including Lake Victoria.³⁹

Despite millenia of human use of the Nile River to meet residential, industrial, and agricultural needs, it is only recently that the international instruments governing its use have explicitly incorporated public involvement into its management. In 1999, 10 of the 11 Nile Basin nations (all but Eritrea) commenced the Nile Basin Initiative (NBI), an informal, interim agreement to facilitate international management of this shared resource.⁴⁰ The NBI promotes basinwide sustainable development and management of the [31 ELR 11393] Nile River and its resources.⁴¹ The NBI's Policy Guidelines provide the framework for regional cooperation. The parties to the NBI created a Shared Vision Program, which established development priorities and emphasized shared benefits of the Nile River and its resources. The Strategic Action Program is the implementation mechanism.⁴²

Three separate international bodies with representatives from each riparian nation manage the NBI. The Secretariat, Technical Advisory Committee, and the Council of Ministers form its management structure. The Secretariat performs administrative tasks for the other two bodies, as well as coordinating and monitoring the activities of the Shared Vision Program working groups. Technical Advisory Committee members present projects to implement the Shared Vision Program to the Council of Ministers. The Council of Ministers is the primary decisionmaking body for the NBI, and is comprised of water ministers from Nile Basin states.⁴³ NGOs such as the International Nile Basin Association (INBA) are also active in gathering and disseminating information about the basin's water resources.⁴⁴ These NGOs supplement the intergovernmental actions and provide possible models for transparency and participation in the basin.

The documents, plans, and programs for the NBI have incorporated transparency and participation to varying degrees. Due to the recent development of these instruments, however, there has been little opportunity to put these norms into practice. Still, it is notable that even in a context that is as polarized and sensitive as the discussions regarding allocation of Nile Basin waters that the riparian nations have seen fit to make the process more open and participatory.

2. Water-Related Instruments and Institutions

The 1997 United Nations (U.N.) Convention on the Law of the Non-Navigational Uses of International Watercourses represents the culmination of decades of international dialogue on the management of international watercourses. It sets forth basic principles for deciding how to allocate water as well as other non-navigational uses. The convention also includes a few norms that promote public involvement. As of December 21, 2001, 16 states had signed the convention, and 8 had ratified, accepted, acceded to, or approved the convention.⁴⁵

The 1992 UN/ECE Convention on Watercourses and Lakes and its 1999 London Protocol establish norms for public involvement in the management of international watercourses in the UN/ECE region, which consists of Europe, the newly independent states of the former Soviet Union, Canada, and the United States. The convention seeks to reduce, control, and prevent transboundary water pollution and the release of hazardous substances into aquatic environments; as of February 9, 2001, 32 states and the European Community have ratified, accepted, approved, or acceded to the convention.⁴⁶ The convention also provides guidance in the management of shared waters where no agreement otherwise exists. The London Protocol focuses on health-related issues associated with international waters; as of December 5, 2000, 36 states have signed the London Protocol, and 2 states (Romania and the Russian Federation) have ratified it.⁴⁷

Southern Africa has progressively adopted a series of legal and institutional initiatives that rely on public participation in developing and managing transboundary water-courses in the region. The 1987 Action Plan for the Common Zambezi River System (ZACPLAN) recognized not only the environmental aspects of international waters but also the need for transparency and public participation in their management. Difficulties in implementing the ZACPLAN⁴⁸ led to a more comprehensive 1995 Protocol on Shared Watercourse Systems (SADC Protocol) in the Southern African Development Community (SADC) Region. Thirteen countries have signed or acceded to this SADC Protocol, which promotes public awareness, public participation, and environmental impact assessment as management tools for transboundary watercourses. The SADC Protocol is significant in that it establishes specific requirements for what basin states can and must do, and it recommends the development of integrated master plans to manage transboundary watercourses.⁴⁹ The 1999 Shared Rivers Initiative seeks to achieve equitable distribution of water resources in the Icomati River Basin, and in other international [31 ELR 11394] river basins eventually.⁵⁰ The initiative has established a basinwide research agenda and a network of scientists to implement that agenda.⁵¹ In this way, the initiative hopes to foster research that generates legitimate data in a transparent and politically acceptable way and to develop a methodology that can be applied to other, more complex basins in the region.⁵²

The Flow Regimes From International Experimental and Network Data (FRIEND) is a project by the International Hydrological Programme of the United Nations Educational, Scientific, and Cultural Organization (UNESCO) that seeks to strengthen scientific information and capacity.⁵³ There are various FRIEND programs worldwide, including one in southern Africa, which includes as partners the University of Dar es Salaam, Rhodes University (in South Africa), the Institute of Hydrology (in the United Kingdom), and governmental hydrological services of SADC countries.

3. Other International Instruments and Institutions

In the last decade, a proliferation of global and regional instruments have expanded and crystallized public involvement in environmental matters generally.⁵⁴ As both soft law (sometimes hortatory and sometimes reflective of general obligations under international law) and hard law (with binding obligations), these instruments apply to a wide range of international and domestic environmental contexts, including transboundary watercourses. Simultaneously, international institutions that conduct or support activities affecting these watercourses have opened up their processes to members of the public. The experiences of the international institutions are particularly illuminating, as they offer concrete examples of how public involvement can work, as well as some of the constraints that it can impose.

Perhaps the most universally agreed upon international environmental declaration, the 1992 Rio Declaration, crystallized the emerging public involvement norms in Principle 10:

Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.⁵⁵

To implement the principles of the Rio Declaration, states at the 1992 U.N. Conference on Environment and Development adopted Agenda Item 21 (the Blueprint for Sustainable Development). Agenda Item 21 envisioned public involvement in developing, implementing, and enforcing environmental laws and policies in many areas including management of freshwaters.⁵⁶ Specifically, Chapter 18 contemplates integrated public participation in the management of domestic and transboundary water resources.⁵⁷

Since Rio, regional initiatives have elaborated on these general principles, clarifying and implementing them. In the Americas, Asia, East Africa, and Europe and the former Soviet Union, regional instruments have urged and even required nations to adopt specific measures to ensure domestic implementation.

The UN/ECE region—comprising Europe, the independent states of the former Soviet Union, Canada, and the United States—has developed some of the most detailed and binding provisions for public involvement. The 1998 UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) emphasizes three areas or "pillars"—transparency, participation, and accountability. In each of these areas, the Aarhus Convention establishes minimum requirements for the state parties to incorporate into their laws and institutions.⁵⁸ The Aarhus Convention relies on enforceable rights of citizens, including procedural rights and the human right to a healthy environment. The Aarhus Convention also prohibits nations from discriminating against natural or legal persons on the basis of "citizenship, nationality or domicile,"⁵⁹ regardless of whether they are in a member state or not. The process leading to the Aarhus Convention was also groundbreaking, as it saw an unprecedented involvement of NGOs in the conceptualization, negotiating, drafting, signing, ratification, and implementation of the Aarhus Convention.⁶⁰ The 1991 UN/ECE Convention on Environmental Impact Assessment in a Transboundary Context is also significant in establishing principles and mechanisms for public access to information and participation with regard to activities with potential transboundary environmental impacts.

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In the Americas, the 2000 Inter-American Strategy for the Promotion of Public Participation in Decision-Making for Sustainable Development (ISP)⁶¹ is an initiative by the Organization of American States (OAS) to implement Agenda Item 21 and Principle 10 of the Rio Declaration in the Western Hemisphere. While the Aarhus Convention is a binding treaty with specific obligations, the ISP is a "Strategy" that encourages, but does not require, signatories to undertake legal and institutional reforms to promote transparency, participation, and accountability. Adopted in April 2000, the ISP comprises two documents: a short, general Policy Framework and detailed Recommendations for Action. These instruments urge Member states to take action (and provide illustrations of possible mechanisms) to improve access to information, decisionmaking, and justice through legal, regulatory, policy, technical, and financial means. As with the Aarhus Convention, members of civil society helped develop and negotiate the text of the ISP, albeit in a more modest fashion.

In Asia, the Asia-Europe Meeting is developing Guidelines on Public Participation in Environmental Aspects in the ASEM Countries.⁶² Still in progress, these guidelines include specific provisions for Member states⁶³ to adopt regarding access to information (Articles 1-17), public participation (Articles 18-26), and access to administrative and judicial proceedings (Articles 27-29). Many of the provisions repeat commitments that the European countries made under the Aarhus Convention, but these represent significantly new commitments for the Asian Member countries.

Institutional developments in different global bodies, such as the World Bank, have been essential in developing mechanisms for public involvement in the on-the-ground implementation of sustainable development, including in the management of international watercourses.⁶⁴ In response to significant pressure from civil society, in the early 1990s many organizations in the World Bank Group undertook efforts to improve their transparency and public consultations, as well as establishing independent mechanisms that the public may invoke to hold World Bank organs more accountable to the World Bank's stated policies and procedures. The World Bank Group includes the International Bank for Reconstruction and Development (IBRD), which loans money to governments, usually for large-scale infrastructure projects, the International Development Association (IDA), which provides long-term loans at zero interest to the poorest of the developing countries, the International Finance Corporation (IFC), which loans money to the private sector, the Multilateral Investment Guarantee Agency (MIGA), which provides investment guarantees against certain noncommercial risks to foreign investors, and the International Centre for Settlement of Investment Disputes (ICSID), which resolves disputes between Member countries and eligible investors.

The World Trade Organization (WTO) develops and administers the rules of the international trade system, and it resolves trade disputes that arise between Member countries. Established in 1994, the WTO supplanted the General Agreement on Tariffs and Trade (GATT). Historically, the WTO and GATT have both been closed to civil society and held a dim view of environmental laws, frequently striking them down as barriers to trade.⁶⁵ In recent years, however, the WTO has made efforts to include civil society, as evidenced by the Appellate Body decision in the Shrimp-Turtle⁶⁶ case (discussed below).

The International Court of Justice (ICJ) was established in 1945 to resolve disputes between nations.⁶⁷ It also settles questions of international law that have been referred to it by U.N. organs, such as the U.N. General Assembly and the World Health Organization which requested the court to issue an advisory opinion on the legality of the use of nuclear weapons.⁶⁸ The ICJ has decided numerous cases that established the boundaries and use of international waters.

The North American Commission for Environmental Cooperation (NACEC) was created as a side agreement to NAFTA to promote environmental issues in the region. It develops recommendations for Canada, Mexico, and the United States on environmental issues, including public access to environmental information held by the government and public participation in decisionmaking processes, transboundary environmental impact assessment, and access to administrative and judicial bodies in transboundary pollution cases. It also can entertain complaints by citizens and organizations that a nation is not enforcing its environmental laws.

The 1995 U.N. Special Initiative on Africa seeks to stimulate social and economic development in Africa throughout the U.N. system.⁶⁹ The Water Component of the Special Initiative adopts a "Fair Share Strategy" with respect to freshwater, which relies on public participation [31 ELR 11396] in the management of domestic and international freshwater resources.⁷⁰

II. Access to Information

Broad access to information is the cornerstone of public involvement. It ensures that the public is able to know the nature of environmental harms and threats. This knowledge allows members of the public to decide whether a response is necessary, and if so what would be the most appropriate and effective action. In an increasingly connected world, where actions in one nation can impact people and the environment in other nations downstream or downwind, states have recognized the need not only to make information available to their citizens but also to share information between nations.⁷¹

A. Environmental Information, Generally

As a result, there is growing international consensus on the need to guarantee broad access to information at the national and international levels. Principle 10 of the 1992 Rio Declaration requires that "at the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities … States shall facilitate and encourage public awareness and participation by making information widely available."

Various regional initiatives since then have significantly clarified the scope of access to information in environmental matters, and in doing so they have had significant agreement on the specific requirements.⁷² "Environmental information" is defined broadly to include information in any form (written, electronic, visual, etc.) on the state of the environment or its components and factors that could affect the environment adversely or positively.⁷³ A person or organization may request information of public authorities (usually including national and subnational, and sometimes including supranational authorities) without having to show an interest in the information.⁷⁴ There is a presumption in favor of access: if the authority has the information requested, it must provide the information without discriminating, for example, on the basis of citizenship, nationality, gender, language, or ethnicity.⁷⁵ The information should be provided in a timely manner and free of charge or for a reasonable fee.⁷⁶ If the authority does not have the information, it must inform the requester where it believes the information may be found.⁷⁷ The authority may refuse to provide the information only for specific reasons (such as national security, commercial confidentiality, and matters currently in litigation), and these exceptions are to be narrowly construed to ensure that the general principle of public access is maintained.⁷⁸ Such refusal must be in writing, and should inform the requestor of how they can seek administrative appeal or judicial review.⁷⁹ If only some of the requested information is protected, the authority must separate out and make the nonexempt information available.⁸⁰

In addition to responding to requests for information, public authorities must affirmatively collect, assemble, and disseminate certain types of environmental information.⁸¹ Mandatory reporting systems may be established.⁸² Thus, nations have committed to regular state-of-the-environment reports⁸³ and pollution registers (often in the form of Pollutant Release and Transfer Registries (PRTRs).⁸⁴ In doing so, authorities must endeavor to make the information available as a practical matter, considering in which language(s) and form(s) the information should be disseminated.⁸⁵ Furthermore, harmonization of the information collected provides an opportunity to assess the state of the regional environment.⁸⁶ Authorities must inform the public of the type and scope of information that is available and how the public can access it.⁸⁷ Additionally, authorities must inform the public of how they can access international legal instruments, national and international documents, and opportunities for [31 ELR 11397] the public to submit information on noncompliance to international bodies regarding environmental matters.⁸⁸

B. Information and International Watercourses

Recognizing that information is essential to the sound management of international watercourses and that states historically have been reluctant to compromise their negotiating positions by sharing information with other states or their own citizens,⁸⁹ international instruments and institutions increasingly facilitate or even require states to share information. This includes information on the status of a transboundary watercourse (such as water availability in the catchment area, rainfall data, simulated stream flows, and evaporation data, as well as water quality data) and on factors that could affect the quality or quantity of water in the watercourse (such as ongoing or proposed projects).

The 1997 U.N. Convention on the Law of the Non-Navigational Uses of International Watercourses mandates information sharing. Thus, under Article 9, states must regularly exchange hydrological, meteorological, hydrogeological, and ecological data (including information related to water quality and to forecasts). Article 11 requires states to exchange information on planned measures, and Article 12 requires prior notification to states that could be affected by proposed actions (including technical data and an environmental impact assessment).

A number of water basin nations have committed to sharing information.⁹⁰ In southern Africa, the SADC Protocol requires Member states to "exchange available information and data regarding the hydrological, hydrogeological, water quality, meteorological and ecological condition of such watercourse system."⁹¹ In order to monitor and develop shared watercourses under Article 4, River Basin Management Institutions are required by Article 5(b)(i) to "collect[ ], analyse, store, retrieve, disseminate, exchange and utilise data relevant to the integrated development of the resources within shared watercourse systems and assist[] member States in the collection and analysis of data in their respective States." Neither of these information-sharing provisions limit the obligations to interstate exchanges, and in fact Article 5(b)(ii) specifically commands the River Basin Management Institutions to "stimulate public awareness and participation in the sound management and development of the environment including human resources development." Implicit in this injunction to promote public awareness and participation is the need to guarantee public access to information about shared watercourses.

C. Development of Public Access

The SADC Protocol recognizes that governments and international institutions frequently lack the financial resources, technical infrastructure, and personnel to manage shared watercourses effectively.⁹² This lack of reliable data has impeded the development, implementation, and enforcement of international agreements on transboundary watercourses.⁹³ In fact, the World Bank observed that in southern Africa, "without hard information [on the actual annual flow of the Senque (Orange) River], Lesotho is unwilling to make a firm international agreement guaranteeing a certain quantity of flow into South Africa."⁹⁴ As a way of supplementing scarce resources and avoiding political difficulties, international instruments and institutions frequently rely on civil society to generate, review, and utilize information necessary to the management of transboundary watercourses.⁹⁵ Thus, the Nile Technical Advisory Committee is currently considering projects designed to promote public participation and public information.⁹⁶ The 1999 London Protocol specifically sought to incorporate the principles of public involvement expressed in the Aarhus Convention into the management of transboundary watercourses.⁹⁷

NGOs are also finding fertile ground to promote access to information on transboundary watercourses in the absence of international sanction. For example, the INBA is a voluntary, nonprofit organization that disseminates knowledge, shares experiences, and provides information relating to the development of Nile water resources.⁹⁸ The INBA constitutes an independent, alternative forum that complements the governmental forum and facilitates the generation and exchange of environmental information.

D. Information on Status of Watercourses

Knowledge about the quality and quantity of water in transboundary watercourses forms the foundation from which all decisions are made. Is there enough water? Is there enough water of sufficient quality? Could watercourse conditions contribute to a particular environmental or public health harm? Is there any need to be concerned about proposed projects that might reduce the quantity of or impair the quality of available water?

Increasingly, conventions establish what information needs to be made available, how frequently, and in what medium. For example, the 1992 UN/ECE Convention on Watercourses and Lakes requires parties to sample and evaluate both ambient water quality and effluent into transboundary waters.⁹⁹ This information must be publicly available "at all reasonable times," inspection shall be free of charge, and the public can obtain copies of the information "on payment of reasonable charges."¹⁰⁰ The 1999 London Protocol to this [31 ELR 11398] convention expanded the information that states needed to collect and make available to the public, including, inter alia, drinking water quality, discharge of untreated wastewater and stormwater overflow, and source water quality.¹⁰¹ Water and effluent sampling results are publicly available.¹⁰² Furthermore, "in the event of any imminent threat to public health from water-related disease, [the state must] disseminate to members of the public who may be affected all information that is held by a public authority and that could help the public to prevent or mitigate harm."¹⁰³ Articles 10(4) and 10(5) enumerate exemptions for making information publicly available. These exemptions basically reflect those included in the Aarhus Convention. Similarly, the Convention on Cooperation for the Protection and Sustainable Use of the Danube River mandates periodic assessments of the status of the Danube River, as well as the "progress made by their measures taken aiming at the prevention, control and reduction of transboundary impacts."¹⁰⁴ This information shall be published and made publicly available.¹⁰⁵

Some of the most promising developments in access to information about the status of transboundary watercourses occur through the growing practice of public and private institutions to collect and make this information publicly available. In addition to indigenous African initiatives,¹⁰⁶ a number of global efforts are helping to build technical and institutional capacity to collect, store, and disseminate information on the status of freshwater resources in Africa. For example, the southern Africa FRIEND program is working to establish an international database on river flows, assemble data that can assist in determining flow regimes, analyze and estimate flood and drought frequency, integrate national inquiries into water resources, and model rainfall and runoff.¹⁰⁷ Similarly, the Nile FRIEND program has strengthened flow data collection and management along the Nile River in a nongovernmental context, although some of the riparian countries have not supported or participated in the program.¹⁰⁸ Additionally, the World Hydrological Cycle Observing System (WHYCOS) is developing a network of observatories around the world—including in the SADC region—to collect high-quality hydrological data.¹⁰⁹

Along the United States-Canada border, the GLWQA mandates the collection of information on water quality and quantity of the boundary waters and the tributaries.¹¹⁰ This information is to be made publicly available, unless it is proprietary under domestic law.¹¹¹ The Great Lakes Information Network's (GLIN's) Geographic Information Systems Section provides online digital data and maps for the region. Users can search by topic, geographic regions, organizations such as the U.S. Army Corp of Engineers (the Corps), or the GLIN Data Access (GLINDA) Clearinghouse.¹¹² Information available through GLIN include links to information on daily stream flows of rivers feeding into the Great Lakes,¹¹³ annual reports by the Corp on water quality along the Great Lakes and for waters feeding into them,¹¹⁴ and the Great Lakes Environmental Research Laboratory Real-Time Great Lakes data, which includes information on the Detroit River's daily-averaged flows.¹¹⁵

Along the United States-Mexico border, citizens and local officials had had difficulties in obtaining information on transboundary watercourses from the IBWC. So when there were questions regarding groundwater pollution in Nogales, Mexico, university researchers collaborating across the border conducted the groundwater testing rather than the IBWC.¹¹⁶ In more recent years, the IBWC has established an internet site that posts the daily and historical flow conditions at different points along the Rio Grande.¹¹⁷

Since 1985, the MRC has undertaken baseline studies of water quality and resources in the basin through its Water Quality Monitoring Network. As of 1999, the network consists of 103 stations, with 18 stations along the main river, 35 on Mekong tributaries, 44 in the Mekong delta, and 5 in wetlands.¹¹⁸ Discharge measurement and sedimentation sampling studies also have been conducted in Cambodia.¹¹⁹ Flow information is made publicly available in various media, and some commercial organizations have, in fact, established a business of publishing water flow data (originally appearing in news reports) for their members.¹²⁰

E. Information on Factors That Could Affect a Watercourse

The public also needs to learn about proposed and ongoing activities that could affect transboundary watercourses. These activities could be developments such as water diversion programs that affect the quantity of water or industrial facilities that affect water quality. Environmental impact assessment (EIA) is an important mechanism for assessing the potential impacts of a project and deciding whether and how to proceed. EIA will be discussed in more detail in section III, but the threshold step of informing the public of the proposed [31 ELR 11399] activity and its potential ecological and social impacts merits mention here.

The SADC Protocol specifically requires River Basin Management Institutions to promote EIAs for development projects in a shared basin.¹²¹ Both the treaty establishing the East African Community and in the East African Memorandum of Agreement on Environment Management envision EIA as an integral tool for environmental management in the region.¹²² Considering the shared concern expressed in these documents for the joint management of Lake Victoria,¹²³ it is foreseeable that the public will eventually have access to information about development projects that could affect Lake Victoria, whether the proposed project is in their country or another one of the three countries. When the IJC receives a project proposal, the IJC must provide notice to the public

that the application has been received, the nature and locality of the proposed use, obstruction or diversion, the time within which any person interested may present a statement in response to the [IJC] and that the [IJC] will hold a hearing or hearings at which all persons interested are entitled to be heard.¹²⁴

The BECC also requires public notification of projects that could affect a transboundary watercourse.¹²⁵

Outside the context of EIA, organizations may obtain information on activities adversely affecting a transboundary watercourse. The Rhine River Commission must "exchange information with [NGOs] insofar as their fields of interest or activities are relevant."¹²⁶ Furthermore, the IJC must inform NGOs when decisions have been made that could have an "important impact" on the organizations.¹²⁷ Similarly, the 1909 IBWT commits the IJC to making publicly available official records, including applications, response statements, and records of hearings, decisions, and reports.¹²⁸ The public may obtain copies of this information upon payment of reproduction costs.¹²⁹

In addition to those factors that negatively affect a watercourse, the public frequently has access to information on activities that seek to redress impacts on transboundary watercourses. Thus, for example, the 1992 Helsinki Convention makes publicly available information on "the effectiveness of measures taken for the prevention, control and reduction of transboundary impact."¹³⁰ Specifically, water quality objectives, issued permits (including the permit conditions), and the compliance assessment results must be made "available to the public at all reasonable times for inspection free of charge, and shall provide members of the public with reasonable facilities for obtaining from the Riparian Parties, on payment of reasonable charges, copies of such information."¹³¹ The 1999 London Protocol expands the requirements to the realm of public health and drinking water, allowing the public to review targets and standards for performance.¹³²

The IBWT provides that the annual inventory of pollution abatement requirements is publicly accessible.¹³³ These pollution abatement inventories include the monitoring and effluent restrictions and compliance schedules, so that the public can review who is in compliance.

F. Information on the Development of Watercourse Norms, Policies, and Management Plans

Building on the information regarding the status of a transboundary watercourse and information on factors affecting the watercourse, the public usually is guaranteed access to basic information on the institutional processes that relate to the development of policies and norms governing actions within the basin. These include draft policies, standards, management plans, and meetings, although internal documents reflecting the deliberative process are not always made available.

Many organizations—including the BECC and the IJC—require the public to be notified of upcoming meetings of regional bodies.¹³⁴ This notice normally states the time and place of the meeting, as well as the agenda or items to be discussed and how the public may participate.

The public frequently has the right to obtain information on proposed standards, management plans, and other means of implementing goals for the management of transboundary watercourses, so that citizens can review and comment on the proposals. The 1999 London Protocol establishes a transparent framework in setting standards and levels of performance regarding protection against water-related disease.¹³⁵ The European Water Framework Directive Proposal provides that the public must have access to river basin management plans, as well as the opportunity to submit written comments on the plans.¹³⁶

In addition to notifying the public of proposed standards, institutions managing transboundary waters may establish a transparent process for making decisions regarding the policies and standards governing activities that affect the watercourse, so that the public can review the bases for the decisions made.¹³⁷

G. Institutionalizing Access

Due to the importance of information and public involvement in the decisionmaking process, many mechanisms have evolved at the international, national, and local levels to ensure that citizens and organizations have access to information [31 ELR 11400] regarding transboundary watercourses.¹³⁸ This includes information on the status of water flow and water quality, information on ongoing and proposed activities that could affect the watercourse, and information on the development of norms, policies, and management plans.

While different watercourse institutions and instruments vary in the specifics, most incorporate both "passive" and "active" mechanisms for ensuring the public has access to the necessary information. Passive mechanisms guarantee that the public can request information from a governmental or supragovernmental authority. Active mechanisms require authorities to collect and affirmatively disseminate information, for example on the status of the watercourse environment or on proposed projects.

Some international institutions have established units tasked with facilitating public access to information on transboundary watercourses. Thus, the Public Relations and Coordination Unit of the MRC Policy and Planning Division disseminates information through press releases, policy papers, annual reports, and release of monitoring and evaluation reports.¹³⁹

To facilitate public dissemination of information, some transboundary water institutions have established resource centers. The 1972 GLWQA established two Great Lakes Regional Offices—located in Windsor, Ontario and Detroit, Michigan—to assist the IJC in disseminating information on the North American Great Lakes, including information on public hearings.¹⁴⁰ The MRC also established centralized resource centers as well as those near the impacted area, and the East African countries recently agreed to establish environmental resource centers.¹⁴¹

Increasingly, institutions charged with the management of transboundary watercourses rely on electronic dissemination both through e-mail and websites. The IJC website (http://www.ijc.org) is a prime example of the capacity of websites to disseminate information. It provides information on the IJC and its function in managing the shared waters of Canada and the United States. The website allows one to search past and present projects, reports, and decisions of the IJC. Current notices of public hearings and reports are available on the site along with the status of projects and issues the commission is dealing with. Full and interim reports are posted on the website for public access. The IJC also uses the site as a source for public comment by supporting what are known as "discussion rooms." Discussion rooms are areas in which citizens are able to discuss issues and post questions for discussion on different issues via the Internet. The IJC also posts summaries of comments received at public hearings on this site and summaries of the status of different issues. The NBI (http://www.nilebasin.org) and the BECC ($|L{http://www.cocef.org) have websites, as does the UN/ECE, which serves at the Secretariat for the 1992 UN/ECE Convention on Watercourses and Lakes and its 1999 London Protocol (http://www.unece.org). The MRC is constructing its own website (http://www.mrcmekong.org).

Civil society organizations can provide a key element in generating and disseminating information on transboundary watercourses. Thus, the Mekong Forum has acted as a clearinghouse of information for the lower Mekong Basin, and universities along the United States-Mexico border monitored and sampled contaminated groundwater in the Nogales area.

At the national level, constitutions, laws, regulations, and policies can provide an enabling environment and ensure that citizens have access to information held by their government (or even by other governments or private actors). In some cases, international agreements exhort or even mandate Member states to modify domestic laws and institutions to allow for access to information, as in the case of the Aarhus Convention. In other cases, the national legislation creates an independent source of rights. Thus, the constitutions of MRC Member states promote access to information by guaranteeing that citizens have the "right to be informed" (Vietnam), to demand information without restrictions (Thailand), to require an EIA for projects (Thailand), and more generalized rights of press, expression, and publication which could implicate rights of access to information.¹⁴² In fact, similar provisions found in many African constitutions establish cognizable legal rights of citizens to have access to information, to participate in governmental decisionmaking processes, and to have access to courts and administrative agencies to guarantee their procedural rights as well as substantive rights to life and a healthy environment.¹⁴³

In spite of the developments at the national and supranational levels, there remain challenges in ensuring public access to information on transboundary watercourses as a practical matter. For example, in Cambodia, access to information on hydropower development projects prior to construction is not commonplace, despite policies to the contrary.¹⁴⁴ One of the reasons for this in Cambodia is the lack of access to radio, televisions, and newspapers, particularly in rural areas.¹⁴⁵ Another complication is language barriers due to the fact that many of the EIA documents in Cambodia are printed in English.¹⁴⁶

It is precisely because of the challenges posed by multiple languages, illiteracy, few technical resources, and a chronic lack of financial resources that public involvement is necessary. Citizens and NGOs can complement governmental and intergovernmental efforts in generating, reviewing, and utilizing data relating to the management of transboundary watercourses. The next section examines how members of the public have been able to take available information and [31 ELR 11401] contribute constructively to deliberations regarding the management of transboundary watercourses.

III. Public Participation

If access to information is the predicate, participation of civil society in decisionmaking processes is the centerpiece of public involvement. Participation ensures that decisionmakers have the opportunity to consider the diversity of interests at stake, and guarantees that citizens and organizations have an opportunity to submit information and arguments on decisions that could affect them.

A. Public Participation in Environmental Matters, Generally

Drawing upon the experiences of many countries in promoting public participation in environmental management, Principle 10 of the 1992 Rio Declaration asserted that "environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have … the opportunity to participate in decision-making processes." Considering the large number of signatories to the Rio Declaration, the commentary of eminent scholars since its adoption, and legal developments, public participation in environmental matters may be said to be a norm of customary international law. Chapter 18 of Agenda Item 21—on integrated management of freshwater resources—has as one of its four principal objectives: "To design, implement and evaluate projects and programmes that are both economically efficient and socially appropriate within clearly defined strategies, based on an approach of full public participation, including that of women, youth, indigenous people and local communities in water management policy-making and decision-making …."¹⁴⁷ Since 1992, regional instruments and national laws have helped to clarify the specific elements of public participation.

Through the development of EIAs at the national, regional, and international levels, members of the public have the right to participate in decisions relating to proposed activities.¹⁴⁸ When an authority (be it national or supranational, such as a water basin authority) is considering a proposed project that could impact the environment, it needs to notify the public of the proposed activity, the nature of the decision that is to be made, and procedure for members of the public to submit written or oral comments.¹⁴⁹ The notice can also indicate possible impacts of the proposed activity. The notice must be made in a manner (language, medium, location, etc.) that will ensure that people who could be affected learn about the proposed activity and the opportunity to comment on the proposal.¹⁵⁰ The timing of the notice must also allow members of the public sufficient time to prepare their comments and participate in the decision-making process.¹⁵¹ Participation should be solicited at an early stage, when options are still open.¹⁵²

The authority must allow the public to review free of charge the documents and other information that the authority is considering in making its decision.¹⁵³ Members of the public have the right to submit written comments, and can sometimes demand a public hearing at which they can submit oral comments.¹⁵⁴ The authority cannot make its decision until after the public has had a chance to submit its comments, and the authority must take "due account" of the public's submissions.¹⁵⁵ In some cases (such as the United States), this means that before it can make a decision the authority must first prepare a "Response to Comments" document that addresses all the submissions that it received from citizens, NGOs, businesses, and other interests in the comment period. Once the decision has been made, the authority promptly must make the decision available along with the reasons for its decision.¹⁵⁶

In addition to EIAs, the public frequently has the opportunity to participate in administrative hearings on proposed activities, such as the granting of permits.¹⁵⁷ Public participation in these activities can be important, as individual permits might not have a sufficiently significant impact so as to warrant an EIA, but in the aggregate these permits can greatly affect the environment, e.g., siltation and eutrophication of waterways arising from urban sprawl that could be addressed at the stage of approving building permits.

International instruments increasingly recognize the rights of the public to participate in the development of plans and policies, and even more binding norms contained in regulations, laws, and international instruments. These rights are still evolving, so that many of the provisions are clear but lack the specific requirements found for public participation relating to specific activities.¹⁵⁸ The Aarhus Convention obligates Member states to allow the public to participate in the development of plans and programs at an early stage and to take due account of the public participation.¹⁵⁹ However, the Aarhus Convention only requires parties to "endeavour to provide opportunities" to "the extent appropriate" for the public to participate in preparing policies bearing on the environment.¹⁶⁰ When it comes to the more binding normative instruments of binding rules and [31 ELR 11402] regulations, the Aarhus Convention is even more circumspect, urging states to "strive to promote" public participation and suggesting fixed time frames, publication of draft rules, an opportunity for the public to comment, and taking public participation "into account as far as possible."¹⁶¹ Nevertheless, these provisions constitute a significant step forward in empowering the public to contribute directly to the overall environmental management framework. Furthermore, the last decade has seen a marked increase in the participation of civil society organizations in the negotiating, ratification, and implementation of international environmental agreements.¹⁶²

B. Public Participation in Decisions Relating to Activities Affecting Transboundary Watercourses

With the development of EIA as a standard tool in environmental management, international agreements on transboundary watercourses increasingly incorporate EIA procedures.¹⁶³ In Africa, EIA is evolving as a key tool in environmental management, and institutions responsible for managing transboundary watercourses are incorporating and promoting EIA. For example, the 1995 SADC Protocol charged River Basin Management Institutions with "promoting [EIAs] of development projects within the shared water-course systems."¹⁶⁴

For Lake Victoria, EIA is emerging as a key tool in protecting the shared water and ensuring that the public has an opportunity to participate in its management. Article 112(2)(b) of the Treaty Establishing the East African Community commits the partner states to "developing capabilities and measures to undertake [EIA] of all development project activities and programmes." Under Article 7(1)(b) of the MOU on Environment Management, East African nations agreed to "develop[], enact[] and harmonize" EIA processes and procedures in national laws, regulations, and guidelines. Article 14 expanded on the commitments for harmonizing EIA in the region, and mandates that the public is to be involved "at all stages of the process."¹⁶⁵

The MOU also committed states to "initiate, develop, implement and harmonize policies, laws and programmes to strengthen regional coordination in the management of the resources of the Lake Victoria ecosystem …."¹⁶⁶ Considering the future of EIA as a component of Lake Victoria management, a group of experts recommended that:

[EIA] procedures in the three countries need to be adopted, harmonized and coordinated, especially with respect to activities affecting a shared resource such as Lake Victoria. This means agreeing on standards, criteria and levels of scrutiny and review that will apply in all three countries. It also means providing citizens/residents of one country the right to obtain information and participate in the EIA process of other countries.¹⁶⁷

Since 2000, the African Centre for Technology Studies, with assistance from the U.S. Agency for International Development (USAID), has been promoting the development and implementation of harmonized EIA in East Africa, centered around the management of Lake Victoria.

As the NBI is evolving, public participation appears to be an underlying principle for the Shared Vision Program and other NBI documents. The Shared Vision Program adopts the related principle of subsidiarity, calling for decisionmaking to occur at the lowest possible level for effective implementation. The Shared Vision Program also promotes public participation initiatives such as stakeholder involvement and community awareness.¹⁶⁸ Policy guidelines that promote public participation in the implementation programs include general statements regarding implementation at the lowest appropriate level, involvement of all affected stakeholders in implementation programs, and consultation and involvement of stakeholders throughout the basin.¹⁶⁹

In North America, the BECC includes affected communities in the process for certifying proposed environmental infrastructure projects along the United States-Mexico border (which for half the distance is the Rio Grande). In addition to the standard notice to the public about an application for project certification and the opportunity for the public to submit comments,¹⁷⁰ the BECC requires that projects have public support.¹⁷¹ In fact, applicants must submit a Community Participation Plan, which includes meetings with local organizations, two public meetings, public access to information about the project, and a steering committee that includes local representatives. Once the Community Participation Plan has been carried out, applicants are required to submit a report that shows public support for the project. In fact, the BECC has respected public comments on proposed projects so much that "on several occasions, projects thought to be all but approved were sent back for redesign following the public-comment period."¹⁷²

Since 1909, the IJC has guaranteed public participation in decisions on specific activities that could affect the Great Lakes. When a party or a person seeks to use, obstruct, or divert waters falling within the IJC's jurisdiction, they must submit an application to the IJC to do so.¹⁷³ The IJC notifies the public of the application by publishing a notice in the Canada Gazette and the Federal Register and once a week for three weeks in newspapers that are circulated "in or near the localities which … are the most likely to be affected" by the proposed activity.¹⁷⁴ The notice must include information on the application, the "nature and locality of the proposed" activity, and the opportunity for the public to submit [31 ELR 11403] written or oral comments.¹⁷⁵ Within 30 days of the filing of the application, any "interested person" other than the project applicant may submit a statement supporting or opposing the proposed activity.¹⁷⁶ Furthermore, "persons interested in the subject matter of an application, whether in favour of or opposed to it" are entitled to speak or have an attorney speak on their behalf at a hearing before the ICJ.¹⁷⁷

All hearings are open to the public, and notice must be provided to the public about the hearings.¹⁷⁸ Interested persons can submit "oral and documentary evidence and argument[s]" at the hearing, although the evidence might be required to be submitted under oath.¹⁷⁹ Counsel for interested parties can also cross-examine witnesses, with the leave of the chairman presiding over the hearing.¹⁸⁰ The verbatim transcripts of the hearings, exhibits filed, briefs and formal statements, and the IJC decisions and orders are all available to the public.¹⁸¹

The public also has the opportunity to participate in discussions by the ICJ on matters that have been referred to them by either Member state.¹⁸² Although these hearings may be sensitive—and thus more likely to be subject to constraints imposed by the Parties—the process is similar to the hearings for applications.¹⁸³

In practice, the IJC has utilized several types of public hearings. For example, the IJC has conducted mini-meetings, large public forums, virtual conferences via the Internet, conference calls, and videoconferences.¹⁸⁴ Recent IJC public hearings have addressed issues ranging from management of water levels,¹⁸⁵ large-scale aquaculture on the water quality of the Great Lakes,¹⁸⁶ and bulk removals of Great Lakes water.¹⁸⁷ In the case of the bulk removals, the interim report was made available to the public on August 18, 1999, allowing all interested Parties an opportunity to review the report, research the issue, and formulate their own opinions before the public hearings in October 1999.

NGOs have had an important role in fostering and convening dialogues on the management of transboundary watercourses. For example, a decade ago, Great Lakes United convened a series of approximately 20 public hearings around the Great Lakes region.¹⁸⁸ These hearings allowed citizens and groups from around the region to come together and voice their opinions on unresolved issues in managing the Great Lakes. (Government and industry representatives also attended the meetings.) This was the first time that citizens were able to voice their thoughts publicly on the topic, and it built bridges between NGOs who had been working toward the same goals, but had not been actively collaborating. The discussions culminated in a report entitled Unfulfilled Promises. Again, in 1998, citizens and NGOs convened another 10 hearings around the region and published another report. Finally, when the U.S. government developed a draft management for Lake Superior and proposed to publish its plan on the Federal Register and give citizens 60 days to respond, the Lake Superior Alliance decided that was insufficient to obtain meaningful public input from those who would be most affected. As a result, the NGO convened a series of hearings on the topic. Once again, government officials attended, "and this time they decided that these meetings were so effective that they should hold some themselves."¹⁸⁹ These experiences highlight the unique role that NGOs have in being able to bridge political boundaries to focus on the watershed and the shared interests of those who depend on transboundary watercourses.

In the Mekong River Basin, Vietnamese university academics and newspaper reporters held a series of public seminars on a government proposal to dike the major river banks in the Delta to control flooding. As a result of the consultations, the "government accepted an alternative proposal which suggested flood evacuation to the Western Sea, as opposed to the original plan of absolute flood control."¹⁹⁰ NGOs also have been active in fostering participation by citizens in decisionmaking processes regarding specific projects. Mekong Forum, an NGO with an academic and student membership base, provides the public with information on development proposals along the Mekong River and its tributaries in order to foster public participation and awareness of the impacts of development. Other Thai NGOs have worked to raising awareness of the environmental impacts of large-scale hydropower development on the Mekong.¹⁹¹

National EIA laws frequently provide a national framework for guaranteeing that the public has access to information about proposed projects that could affect the quality or quantity of water in transboundary watercourses. For example, in the Mekong River Basin, Thailand's Enhancement and Conservation of Environmental Quality Act affirms the public right to environmental information and establishes an EIA framework.¹⁹² Similarly, Cambodia and Vietnam have EIA legislation in place, and Lao PDR is developing comparable legislation.¹⁹³ Many of these legal and institutional developments have occurred in the context of the [31 ELR 11404] United Nations Economic and Social Commission for Asia and the Pacific (UNESCAP) efforts to develop a regional initiative on public participation.¹⁹⁴

C. Public Participation in Decisions Setting Norms, Policies, and Plans for Transboundary Watercourses

Setting the broad norms and plans governing transboundary watercourses can be an effective avenue for incorporating the priorities of the public. In participating in the establishment of norms, policies, and plans, members of the public and government can avoid an interminable series of piecemeal battles and go to the root of the issue. The watercourse institutions, in turn, are able to benefit from the on-the-ground experience and expertise of civil society members.¹⁹⁵

Citizens have served on commissions, boards, and task forces for transboundary watercourses. For example, people from NGOs, business, and state and local governments have served on the BECC,¹⁹⁶ and citizens who were both specialists and nonspecialists have served on IJC boards and task forces.

For most citizens and NGOs, the priority simply is to submit information and arguments, rather than actually serving on a decisionmaking body. Accordingly, the MRC has affirmed that all Mekong riparian states, project supporters, project opponents, national Mekong committees, and representatives of indigenous populations should take part in developing sustainable policies for the basin. In addition to resource users and occupational groups in the basin, people living outside the Mekong River Basin who may be affected by the impacts of a project may participate.¹⁹⁷ This stakeholder participation is to occur in all aspects of MRC activities, including project and program planning, implementation, monitoring, and evaluation.¹⁹⁸ These declarations mark progress toward incorporating public participation in establishing policies and plans, however the practice to a large degree has yet to be realized.

In the 1998 MOU on Environmental Management, East African nations committed to the "full involvement of their people in the sustainable use and management of environment and natural resources."¹⁹⁹ The NBI provided that "the appropriate planning level needs to involve all those who will be affected."²⁰⁰ The 1999 London Protocol commits parties to "ensure that due account is taken of the outcome of the public participation" in setting standards and levels of performance regarding protection against water-related disease.²⁰¹ UN/ECE nations also committed to including the public in the development of water management plans in transboundary, national, and local contexts.²⁰² Due to the newness of these instruments, though, little practice has yet to emerge.

Public participation can compel transboundary institutions to comply with their own stated policies and procedures. For example, the Internet discussion group BECCnet has

influenced decisionmaking about a half-dozen times [by early 1998]. When the [BECC] failed to adhere to self-imposed guidelines for a forthcoming meeting, for instance, e-mail protests were so numerous that the directors rescheduled the meeting. Similarly, at another meeting attended by about 200 people, the chairman gaveled the proceedings closed before allowing public comment; the cascade of protests on BECCnet led to a public apology and a binding modification of procedures for such comment.²⁰³

Similarly, the public can help to review compliance by parties to an agreement on a transboundary watercourse.²⁰⁴ The transparency of this review can encourage compliance and strengthens the credibility of the institution.

D. Public Participation in the Development of Transboundary Watercourse Agreements

As mentioned in section III.A above, civil society organizations have participated in the development of a number of international environmental agreements over the last decade. NGOs also played a key role in negotiating the 1987 Amendments to the GLWQA.²⁰⁵ NGO representatives served on the national delegations, reviewed draft position statements, and participated in decisionmaking at the national and bilateral levels. Through the process, they helped to establish trust between the governments and civil society. The NGO representatives complemented the government representatives, as the NGO representatives had technical knowledge that often exceeded that of their counterparts, particularly the official delegations representing the foreign ministries of Canada and the United States.

Following the adoption of the GLWQA, the NGO representatives worked to implement the agreement. The IJC subsequently noted that "these [NGOs] are important in focusing political attention on the integration of Agreement objectives into domestic priorities and programs. They are instrumental in encouraging governments to provide the resources necessary to implement the agreement and actively promoting environmentally conscious behavior among their own membership and the public at large …."²⁰⁶

E. Implementing Public Participation

Full public participation involves all sectors of society.²⁰⁷ In order to accomplish this, it will be necessary to address [31 ELR 11405] challenges posed by historical, geographical, and financial constraints.

For example, along the Mexico-United States border, the BECC holds quarterly meetings in different cities. Although these meetings are open to the public, the large distances associated with the border region hamper public attendance.²⁰⁸

In Cambodia, a distrust of public participation has occurred since "'public participation' was used during the Khmer Rouge regime to gather villagers in coercive activities."²⁰⁹ Attempts to adopt a "participatory approach" have been more successful, but this may require a different approach than is often used, particularly since "during the Khmer Rouge era, people attending public meetings could be killed or forced into hard labour."²¹⁰

Education and training of the public and of public officials are essential to establishing trust in the value of public participation and in understanding how to participate in the management of water resources.²¹¹ Reliable enforcement mechanisms are also necessary to ensure that public participation is given its full due.²¹²

IV. Access to Justice

Citizen access to administrative and judicial review mechanisms—commonly termed "access to justice"—provides a third pillar²¹³ in the governance of international watercourses.²¹⁴ Access to information and public participation depend on enforcement and review mechanisms for their guarantee. Additionally, these review mechanisms can help to ensure that substantive norms are complied with, for instance that there is not undue degradation of water quality or illegal extraction of water.

While there remains work to be done to improve the transparency and participatory nature of governments and international institutions, discussions surrounding environmental law and international water management increasingly turn to implementation and enforcement. It is not enough to in theory provide information, to allow the public to participate, or to have strong norms; these legal rights and obligations must be backed by enforcement mechanisms that provide recourse for violations.

Over the last decade, governments have overcome much of their resistance to involving citizens in the enforcement procedures relating to international watercourses. As a result, people living along and relying on transboundary watercourses have been able to challenge decisions using a variety of tools. This section discusses proceedings initiated by citizens in many fora, including domestic courts and international fact-finding and investigatory bodies such as the NACEC and the World Bank. In addition, although sometimes not able to bring cases on their own behalf in certain venues, citizens may be able to participate in proceedings between countries before such international bodies as the WTO and the ICJ through the submission of amicus briefs.

A. Access to National Courts and Agencies

Citizens may be able use their domestic laws, courts, and administrative bodies to challenge activities that are resulting in international watercourse degradation. As discussed below, this can provide a familiar venue for aggrieved parties, although there might be difficulties associated with the extraterritorial application of domestic law.

In addition to utilizing domestic venues, citizens may also be able to participate in the judicial or administrative proceedings of another country as intervenors or affected parties (plaintiffs). This can be quite complex. Cases involving transboundary harm often require complicated procedural and political issues to be addressed, such as sovereignty, the presumption against the extraterritorial application of national laws, jurisdiction, and forum non conveniens.

Cases in Europe and North America have established precedents for affected people to invoke the jurisdiction of another country. Building on these cases and the growing recognition of the role that private parties can have in the management of international waters, recent conventions have incorporated access to justice principles.

1. The Rhinewater Case

Chlorides have had a tremendous impact on the Rhine River. The Netherlands is especially vulnerable to high chloride inputs since it also faces problems with seawater seepage which result in salinated agricultural lands. Further inputs of chlorides from upstream potassium mining have historically exacerbated this problem. The natural flushing of the lands by the Rhine could not counteract the increase in chlorides.²¹⁵ In 1976, France, Germany, Luxembourg, the Netherlands, and Switzerland signed the Convention for the Protection of the Rhine River Against Pollution by Chlorides (Chloride Convention).²¹⁶

Disagreement regarding the terms of the Chloride Convention took many years to resolve. Although the Chloride Convention was drafted in 1976, the French National Assembly refused to ratify it until 1983. The French government faced local opposition from Alsatian regional authorities who felt they had not been consulted, environmentalists who feared groundwater contamination from the proposed injection system, and salt producers anticipating additional competition.²¹⁷ The Netherlands recalled its ambassador to France to demonstrate its displeasure with the delay, but no procedures under international law were initiated.²¹⁸

There was, however, a judicial dispute between private parties that indicates the importance of the chloride issues. [31 ELR 11406] The dispute, referred to as the Rhinewater²¹⁹ case, was initiated by individuals suffering from the chlorides and the Dutch group the Rhinewater Foundation (Stichting Reinwater) against the French company Mines de Potasse d'Alsace (MDPA). MDPA was contributing an estimated 54% of the total chloride charge of the Rhine.²²⁰ Jurisdictional issues were settled in 1976 by the European Economic Community Court of Justice, which held the plaintiffs could sue either where the damage occurred or where the damaging act took place.²²¹ The plaintiffs chose the Netherlands. In 1988, hearing the case on appeal, the Netherlands' Supreme Court held MDPA liable for a share of the Rhine's chloride pollution. Its decision was based largely on the general legal principle "sic utere tuo ut alienum no laedas," or "use your own property in such a manner as not to injure that of another." MDPA requested that the court consider the 1976 Chloride Convention, which had not yet entered into force. The court did note that even if the Chloride Convention had been in force, it would not have been precluded from finding that MDPA's activities were illegal when they harmed inhabitants of the Rhine's riparian states.²²² The parties to the suit eventually settled.

During this time, France and the Netherlands held negotiations with respect to the Chloride Convention, which France had not yet ratified. The two countries agreed to conduct new chloride studies, resulting in a modified agreement in 1981 that was ratified by France and entered into force in 1985.²²³ The modification altered the amount by which France would have to reduce its salt discharge from the original three million metric tons per year to one million.

The Rhinewater case is significant for a number of reasons. First, the EEC Court of Justice held that suits to enjoin damage to international watercourses may be brought either in the nation where the offending act occurred or in a downstream nation where the effects are felt. This allows affected parties to have their case heard in a forum that is more likely to be sympathetic to their claims and less prone to protecting a potentially important domestic industry. Second, the ultimate judgment relied on the basic legal principle of "sic utere," a principle that underlies not only the Dutch civil law system but also common-law systems. Third, the Netherlands' Supreme Court held that the case could still have proceeded even if the Chloride Convention had been in force. Together, this case establishes the precedent, albeit persuasive rather than binding for most countries, that citizens may invoke basic principles of law to seek compensation for damages to an international watercourse in either the nation suffering the injury or the nation where the injurious action occurred.

2. The High Ross Dam Controversy

The High Ross Dam is located on the Skagit River, which rises in British Columbia, crosses the United States-Canada border, and eventually joins Puget Sound. The city of Seattle received approval from the IJC to build the dam in 1942. The dam was to be constructed in four stages. In 1970, Seattle applied to the U.S. Federal Energy Regulatory Commission (FERC) for approval to construct the final stage, which would increase the height of the High Ross Dam by over 120 feet to a height of 1,725 feet. The United States and Canada requested the IJC to investigate the proposed project and its environmental impacts in Canada and to issue recommendations to FERC based on its findings. The IJC acknowledged that important environmental impacts would result but concluded that negative impacts would not be substantial.²²⁴ FERC prepared a draft environmental impact statement (EIS) for the proposed project, as required by the U.S. National Environmental Policy Act, and attached the IJC report to the document.²²⁵

Environmental groups and concerned individuals on both sides of the border participated in the 67 days of hearings on the draft EIS.²²⁶ The administrative law judge (ALJ) presiding over the hearings issued an Initial Decision that recommended approval of Seattle's application, subject to conditions. FERC affirmed and adopted the ALJ's decision. FERC's actions were then brought before the U.S. Court of Appeals for the D.C. Circuit in the case Swinomish Tribal Community v. Federal Energy Regulatory Commission.²²⁷

In Swinomish, Canadian intervenors (the British Columbia-based environmental group Run Out Skagit Spoilers Committee, or R.O.S.S. Committee) were permitted to challenge the validity of FERC's approval of an amendment of Seattle's license allowing Seattle to raise the height of the High Ross Dam. The Canadian intervenors asserted that FERC's EIS gave insufficient consideration to the proposed project's environmental impacts on Canadian lands across the border.²²⁸ In its statement of facts, the D.C. Circuit acknowledged the Canadian interest in the case:

Because the reservoir at the maximum elevation of 1602.5 presently extends into Canada about one mile covering 480 acres and because the proposed construction of High Ross will further increase the surface area of the reservoir, Canadian interests have been implicated since Project No. 553 was originally authorized in 1927…. City [Seattle] received IJC approval for High Ross in 1942, conditioned on City's execution of a compensation agreement with the Province of British Columbia regarding the flooding of provincial lands …. The present reservoir at elevation 1602.5 has a maximum surface of 11,700 acres, 480 of which are in Canada. High Ross with an elevation of 1725 will flood an additional 8329 acres, 4720 of which are in Canada. The present reservoir extends one mile into Canada; the enlarged reservoir will extend seven miles into Canada.²²⁹

The D.C. Circuit nevertheless upheld FERC's decision to approve the project, and the controversy did not end. While the project was awaiting a special use permit from the National Park Service, British Columbia contested the project [31 ELR 11407] and brought the matter before the IJC in 1980 with a "Request in the Application."²³⁰ The IJC encouraged British Columbia and Seattle to reach a negotiated settlement, which they did in 1984. The settlement was accompanied by an international treaty that provided for compensation by British Columbia to the city of Seattle in exchange for the city's suspension of the project. The treaty also established a Skagit Environmental Endowment and Commission to administer the endowment.²³¹

While the D.C. Circuit ultimately upheld the EIS, Swinomish established a precedent for allowing citizens and organizations from another country to intervene in a U.S. case in which the management of a transboundary watercourse was in dispute. It should be noted, however, that the intervention was allowed in large part because the intervenors had a cognizable legal interest: Canadian land in which they had an interest was going to be affected by actions across the border.

3. Other Cases

In Lujan v. Defenders of Wildlife,²³² the U.S. Supreme Court dismissed a case brought by a U.S. conservation organization that sought to require USAID to consult with the Secretary of the Interior regarding potential impacts of the Aswan High Dam and the Accelerated Mahaweli Development Program on endangered species along the Nile and Mahaweli rivers. The court held that the plaintiffs lacked standing because they did not prove that they would be injured by the construction of the dam or that their injury would be redressed if USAID did not fund the project.²³³

Contrasting Swinomish and Lujan, one observes that while U.S. courts are reluctant to apply domestic laws extraterritorially they appear to be more willing to entertain claims by alien or international parties who have been or will be directly and clearly affected by a proposed project in the United States.²³⁴ Specifically, in Swinomish, the U.S. plaintiffs and Canadian intervenors included people in both countries who would be affected by raising the height of the dam. In Lujan, however, the court looked dimly on two members of Defenders of Wildlife who had traveled to the region but did not appear to have serious connections to the affected region.

A number of domestic cases have focused on activities affecting the Rio Grande region along the United States-Mexico border. For example, an ALJ hearing a proceeding on whether to grant a permit for a low-level radioactive waste disposal facility in the state allowed the Mexican city of Juarez and the NGO Greenpeace Mexico to intervene in the proceeding.²³⁵

4. The (U.S.) Alien Tort Claims Act (ATCA)

While most transboundary cases are brought in the national courts either where the injury is suffered or where the action causing the injury occurred, some U.S. cases are premised solely on the violation of international law. Recently, the ATCA of 1789 has been revived by attorneys as a vehicle to bring alleged human rights and environmental violations before U.S. courts on behalf of foreign plaintiffs. Establishing a federal forum and civil cause of action, the statute states in full that "the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."²³⁶

While many of the cases brought under the ATCA allege human rights abuses, which are currently easier to establish as violations of the law of nations, several lawsuits have alleged violations of environmental norms. The case of Jota v. Texaco Inc.²³⁷ was brought by Ecuadorian and Peruvian plaintiffs challenging the activities of U.S.-based Texaco in Ecuador. The plaintiffs alleged that from 1964-1992, Texaco improperly dumped toxic byproducts of its oil exploration activities in the rivers and forests of Peru and Ecuador, and thereby caused physical injuries to the plaintiffs. The plaintiffs also alleged injury resulting from leakage of oil from Texaco's Trans-Ecuadorian pipeline. The claims for monetary and equitable relief were brought under various tort theories and violations actionable under the ATCA.²³⁸ In rejecting the defendant's claims that the case should not be heard in U.S. courts, the U.S. Court of Appeals for the Second Circuit expressed "no view" on the substantive merits of the case.²³⁹

While other environmental cases are being brought under the ATCA, no case has yet decided an environmental ATCA claim on the merits.²⁴⁰ Lawyers and advocates are also exploring the connections between human rights and the environment in the many contexts where the two concepts merge. For example, discharge of hazardous substances into the environment that causes health problems, environmental devastation, and displacement could constitute a crime against humanity or a violation of one or more universally recognized rights of all people to a healthy environment, to life, to health, and to food, water, and housing, and could therefore form the basis for an ATCA claim.

[31 ELR 11408]

5. Treaty Provisions

International treaties, conventions, and protocols increasingly include specific provisions to ensure fair, equitable, and effective access to courts and administrative agencies. These provisions build upon the experiences of citizens in using national judicial and administrative fora to protect international watercourses and recognize the important role that these institutions can play in enforcing environmental norms.

Some of the conventions simply call for nondiscrimination in providing access to justice. Thus, Article 32 of the 1997 U.N. Convention on the Law of the Non-Navigational Uses of International Watercourses provides:

Unless the watercourse States concerned have agreed otherwise for the protection of the interests of persons, natural or juridical, who have suffered or are under serious threat of suffering significant transboundary harm as a result of activities related to an international watercourse, a watercourse State shall not discriminate on the basis of nationality or residence or place where the injury occurred, in granting to such persons, in accordance with its legal system, access to judicial or other procedures, or a right to claim compensation or other relief in respect of significant harm caused by such activities carried on in its territory.²⁴¹

While it is possible for states to agree otherwise, the general rule is that citizens and organizations shall have access to legal recourse on a nondiscriminatory basis. This principle represents the culmination of three decades of negotiation and agreement among legal experts and decision-makers around the globe, and as such it may represent an emerging norm of customary international law that the convention codified.

In East Africa, the nations of Kenya, Tanzania, and Uganda adopted a MOU for Cooperation on Environment Management that obligates the nations to ensure public access to their administrative and judicial proceedings. To build capacity, Article 16(2)(d) commits states to

develop measures, policies and laws which will grant access, due process and equal treatment in administrative and judicial proceedings to all persons who are or may be affected by environmentally harmful activities in the territory of any of the Partner States.²⁴²

Article 16(3) further expands the nondiscrimination principle, by providing that:

The Partner States agree to grant rights of access to the nationals and residents of the other Partner States to their judicial and administrative machineries to seek remedies for transboundary environmental damage.²⁴³

Considering these two provisions in the context of managing and protecting Lake Victoria (Article 8), the MOU lays out a normative framework for ensuring open, nondiscriminatory access to justice in the management of this shared water body. In fact, the MOU both builds on previous domestic experience and presages subsequent recognition of public involvement in enforcing environmental laws.²⁴⁴ In considering ways to develop and harmonize the environmental laws and institutions governing Lake Victoria, a United Nations Environment Programme/United Nations Development Programme (UNEP/UNDP) joint project recommended that "broad principles of locus standi should be adopted to allow private suits as a tool for the enforcement of environmental obligations."²⁴⁵

In the UN/ECE region,²⁴⁶ a number of conventions provide for access to justice in environmental matters generally and specifically for international watercourses.²⁴⁷ Adopted in 1998, the Aarhus Convention provides detailed and binding minimum requirements with respect to public involvement in "environmental matters." While the convention applies generally in the context of national legislation and institutions, the convention envisions incorporation of the principles into international norms and institutions.²⁴⁸

Article 9 of the Aarhus Convention provides access to courts and administrative remedies to ensure access to information, public participation, and compliance with national environmental laws. Article 9(1) requires states-parties to provide expeditious and affordable review of a request for information, when a requestor "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 …." Article 9(2) guarantees that both people and organizations can "challenge the substantive and procedural legality of any decision, act or omission" when the requirements of public participation for specific activities have not been met. While Article 9(2) allows national laws to require plaintiffs to have a "sufficient interest" or "maintain] [ impairment of a right," these findings are to be "determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention." Notably, Article 9(3) also ensures that "members of the public" have recourse to courts and administrative agencies to "challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment." Thus, the public is called upon to supplement the enforcement role that is traditionally the realm of governments.

In all cases, Article 9(4) requires that access to justice be fair, effective, and open. This means that the "procedures … [31 ELR 11409] shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive." Furthermore, decisions must be in writing and made available to the public. To facilitate the use of administrative and judicial review, Article 9(5) requires each state-party to endeavor to "remove or reduce financial and other barriers" and to provide information to the public on the procedures.

The 1999 London Protocol specifically extends many of the detailed public involvement provisions of the Aarhus Convention to the management of international watercourses. Despite the extensive access to information and public participation provisions discussed above, the London Protocol has only a few general provisions urging parties to provide access to justice. For example, Article 5(i) provides that "access and participation should be supplemented by appropriate access to judicial and administrative review of relevant decisions," but it does not clarify the nature of the review.

The Aarhus Convention represents the most detailed elaboration of access to justice by an international treaty, but a number of other global and regional instruments have also recognized the importance of broad access to environmental justice. These include the Rio Declaration (Principle 10), the Inter-American Strategy for the Promotion of Public Participation in Decision-Making for Sustainable Development (Recommendation 2),²⁴⁹ and the draft ASEM Guidelines.²⁵⁰

B. Access to International Courts

In addition to the national bodies, aggrieved citizens and organizations increasingly find that international courts are willing to entertain their briefs on the matter before the court. By the terms of their organic statutes, the ICJ, the WTO, and other international tribunals usually are empowered to entertain cases brought by nations and occasionally by international organs such as the United Nations and its subsidiary bodies.²⁵¹ Nevertheless, these bodies increasingly allow members of civil society to provide separate briefs that lay out additional facts and legal arguments.

In a dispute between Hungary and Slovakia over the proposed Gabcikovo-Nagymaros Dam, the ICJ for the first time accepted a position paper or "memorial" from a coalition of NGOs, which included Greenpeace, the International Rivers Network, the Natural Heritage Institute, the Sierra Club, and the World Wildlife Fund.²⁵² The ICJ recognized the NGO coalition as "amicus curiae," or friends of the court. The coalition's memorial demanded the restoration of the Danube ecosystem and argued that the planet's natural treasures deserve international protection.²⁵³ More than two years later, on September 25, 1997, the ICJ ruled that the proposed diversion of the Danube was illegal.²⁵⁴

In another high-profile case, the WTO allowed NGOs to submit amicus briefs for the first time. The Shrimp-Turtle dispute arose from a U.S. law that sought to protect endangered sea turtles from shrimp trawl nets by requiring nations that caught and exported wild shrimp to the United States to certify that they used turtle-excluder devices (TEDs) to prevent turtles from becoming ensnared in the nets.²⁵⁵ India, Malaysia, Pakistan, and Thailand challenged the U.S. law as an illegal restriction on their shrimp exports in contravention of GATT obligations. The United States countered that the law was legitimate under Article 20 of the GATT, which provides for exemptions necessary to protect human, animal, and plant life or conserve natural resources.

The Center for International Environmental Law (CIEL) and the Center for Marine Conservation jointly submitted an amicus curiae brief to the WTO panel in support of the U.S. conservation measures. Specifically, the brief provided scientific information regarding the endangered status of sea turtles, proffered legal arguments that sought to interpret WTO obligations in the context of international environmental law, and highlighted the need for the participation of civil society in the WTO dispute resolution system.²⁵⁶

The panel rejected the NGOs' brief, holding that non-state actors did not have the right to participate in WTO dispute settlement proceedings. The panel also held that the U.S. law constituted an unjustifiable restriction on international trade that was not covered by the Article 20 exceptions.

When the United States appealed the panel's decision in 1998, the CIEL submitted a second amicus brief on behalf of seven NGOs from around the world. The Appellate Body upheld the panel's decision to overturn the U.S. measure, but the Appellate Body also accepted the NGO brief and reversed the panel's ruling that submissions by civil society could not be considered.²⁵⁷ While this decision is a significant step forward, it is tempered by the fact that the decision only requires a panel to consider an amicus brief when a party to the dispute attaches the materials to its own submission. The panel may, but is not required to, consider other submissions.²⁵⁸

[31 ELR 11410]

Regional human rights commissions and courts provide civil society with a venue for vindicating fundamental human rights. In the Americas and Europe, these commissions and courts can accept and investigate petitions filed by citizens and organizations alleging abuses of human rights.²⁵⁹ In contrast, while Africa has a human rights commission, it does not have a court that is comparable to the Inter-American and European courts.²⁶⁰ While these bodies have yet to be utilized in the context of international watercourses, significant alteration of the quantity or quality of water by an upstream actor could impinge on the rights to life, health, and environments to such a degree as to establish a basis for commission or court jurisdiction. The moral suasion of a public decision by a human rights commission or court could embarrass a state into complying with its international legal obligations.

C. Fact-finding and Investigative Bodies

In addition to international courts and tribunals, members of the public increasingly are able to gain access to international bodies with the authority to investigate alleged violations. In fact, a number of these bodies were established precisely to ensure that citizens and NGOs have the ability to review actions of nations and international bodies (such as the World Bank) and file complaints when actions violate procedural or substantive requirements. While these bodies generally lack the authority of a legal body, they have been moderately effective in promoting compliance by publicly finding that an accused actor has violated agreed-upon norms.

1. World Bank (IBRD/IDA) Inspection Panel

The World Bank Group consists of five separate institutions that seek to promote development around the world. The IBRD, often known by the public as the World Bank, loans money to governments to develop typically large-scale infrastructure projects, such as hydroelectric power projects. In Africa, the IBRD has been involved with transnational water resources management projects such as the Lake Victoria Environmental Management Project and the Lake Malawi/Nyasa Biodiversity Conservation Project (both of which are financed through IDA credits and Global Environment Facility (GEF) trust fund grants).²⁶¹

In September 1993, the IBRD and the IDA created the Inspection Panel to increase transparency and accountability, as well as to respond to complaints regarding the social and environmental impacts of its projects.²⁶² The Inspection Panel is not a judicial or enforcement body, but it can influence and improve compliance with World Bank policy.²⁶³ It is comprised of three members from different World Bank Member countries, who are independent from the World Bank's board of directors and management, but appointed by the World Bank's executive directors.²⁶⁴

The Inspection Panel Operating Procedures authorize the panel "to accept Requests for Inspection which claim that an actual or threatened material adverse effect on the affected party's rights or interests arises directly out of an action or omission of the Bank to follow its own operational procedures during the design, appraisal and/or implementation of a Bank financed project."²⁶⁵ These requests may be made by a group of two or more people from the country of the World Bank-financed project, by a local representative who has been duly appointed to represent adversely affected people, by a foreign representative where there is no adequate in-country representative, and even by the World Bank's executive director where serious violations of the World Bank's procedures and policies are alleged.²⁶⁶

The Inspection Panel is responsible for determining whether a specific request falls within its mandate. If it does, World Bank management must prepare a response to the allegations. The panel then conducts an independent preliminary assessment of the merits of the management's response and makes a recommendation to the World Bank's board of directors about whether the claims should be investigated. Once the panel receives the approval of the board of directors, it can conduct an investigation.²⁶⁷ Two specific examples will highlight the opportunities for, and limitations of, citizens appealing to the Inspection Panel to protect their interests in an international watercourse.

On October 12, 1999, the Resources Conflict Institute (RECONCILE), a Kenyan NGO, submitted a Request for Inspection to the panel concerning the Lake Victoria Environmental Management Project. In filing this request, RECONCILE also represented two other Kenyan NGOs—the Friends of Lake Victoria (OSIENALA) and the East African Communities Organization for Management of Lake Victoria Resources (Kenya Chapter of Ecovic). The requesters claimed that the individuals whom they represent are likely to suffer harm as a result of the failures and omissions of the IDA and the IBRD (the implementing agency of the GEF) in the design and implementation of the water hyacinth management component of the project.²⁶⁸ This component entails mechanical shredding of water hyacinths and allowing the shredded material to sink to the lake bottom to decay.

The requesters alleged that this method was chosen without conducting a prior EIA or adequate community consultation and will cause environmental degradation and endanger [31 ELR 11411] the lake's communities.²⁶⁹ The request cited violations of several World Bank policies and procedures, particularly those dealing with environmental assessment, poverty alleviation, economic evaluation of investment projects, and project supervision.²⁷⁰ On December 20, 1999, World Bank management responded to the request by stating that, while it disagreed with the claims in the request, it believed that it should do a more thorough job of informing the public about its chosen management plan.²⁷¹ In reviewing the request, the panel visited the site and met with representatives from RECONCILE, other NGOs, community-based organizations, fishermen, fishmongers, and individuals who depend on lake fishing and subsistence agriculture. Panel members also spoke with World Bank staff and Kenyan government officials. As a result of its review, the Inspection Panel recommended that an investigation be approved.²⁷² On April 10, 2000, the World Bank's board of directors approved the Inspection Panel's recommendation. The investigation is underway.²⁷³

Notwithstanding the progress on the Lake Victoria case, the board of directors has allowed very few investigations to proceed; however, one investigation regarding a transnational watercourse was authorized.²⁷⁴ In 1996, the NGO Friends of the Earth-Paraguay (Sobrevivencia) filed a Request for Inspection for the Yacyreta Dam, a large dam on the Parana River between Paraguay and Argentina that was financed primarily by the World Bank and Inter-American Development Bank (IDB). The request was based largely on the fact that 25 years after the dam was constructed in the main channel of the river, the required environmental mitigation and resettlement plans had still not been fully executed.²⁷⁵ Sobrevivencia complained that the project impaired surface and groundwater, inundated farmland critical to the livelihoods of rural poor, flooded ecosystems, and disrupted the migration of fish. The request also noted socioeconomic impacts such as loss of income and jobs, resettlement locations far from the original communities, and a loss of cultural and social identity.²⁷⁶ Finally, the request noted a number of ways that the project violated many of the World Bank's own policies, including those on hydroelectric projects, EIA, project monitoring, and evaluation.

An Inspection Panel visited the dam site, met with local citizens and organizations, and ultimately recommended to the World Bank's board of directors that an investigation of the allegations be conducted. The board approved a limited review of Sobrevivencia's claims and an assessment of the project's management.²⁷⁷ The review and assessment included the hiring of an independent consultant, over 40 interviews with affected individuals and groups, a second site visit by the panel, and public hearings. The review and assessment attracted significant media attention to the project and Sobrevivencia's claims. It also increased the level of involvement in the project by the Yacyreta Bi-national Entity, as well as World Bank and IDB supervision.²⁷⁸

2. IFC/MIGA Office of the Compliance Advisor Ombudsman

In contrast to the IBRD, which loans money to governments, the IFC is the arm of the World Bank that is responsible for making loans to the private sector, and MIGA provides investment guarantees against certain noncommercial risks to foreign investors in Member countries. In 1999, the IFC and MIGA established the position of Environmental and Social Compliance Advisor/Ombudsman (CAO) to "respond] [ to complaints by persons who are affected by projects and attempt] [ to resolve the issues raised using a flexible, problem solving approach."²⁷⁹ As an independent and impartial body, the CAO also advises and audits the IFC and MIGA.

The Operational Guidelines of the CAO allow "any individual, group, community, entity or other party affected or likely to be affected by the social and/or environmental impacts of an IFC or MIGA project" to file a complaint.²⁸⁰ This may be done directly or through a representative.²⁸¹ The complaints must be in writing but can be in any language.²⁸² The guidelines allow complaints that address the "planning, implementation or impact of projects," including the adequacy and implementation of social and environmental mitigation measures and the "involvement of communities, minorities and vulnerable groups in the project."²⁸³ To resolve the complaints, the CAO can investigate, convene a dialogue, or even pursue more formal arrangements such as conciliation, mediation, and negotiated settlements.²⁸⁴

The relative newness of the CAO means that there is little experience with it at this point, let alone in the particular context of international waters. Its existence, however, constitutes a significant step forward in empowering citizens to seek recourse to international fact-finding and investigative bodies.

3. The NACEC

In North America, the NACEC promotes access to justice at the national and regional levels. Through the NACEC's organic statute, the North American Agreement on Environmental Cooperation (NAAEC), Member states have committed to ensuring that interested persons may petition the competent national authorities to investigate alleged violations [31 ELR 11412] of environmental legislation (Article 6.1), providing persons who have legally cognizable interests with access to judicial, quasi-judicial, or administrative bodies in order to enforce the environmental legislation (Article 6.2), and ensuring that the proceedings are "fair, open and equitable" (Article 7.1).

At the regional level, citizens and organizations can file complaints alleging that a Member state is not enforcing its environmental laws.²⁸⁵ The NACEC investigates the complaint and can develop a "factual record" that can be made publicly available.²⁸⁶ The decisions adopted by the NACEC in response to citizen submissions are not binding on the parties, but the independent third-party review can provide a powerful tool in compelling governments to comply with and enforce environmental laws. While groups from one country can activate the submission process, this complaint mechanism also provides an opportunity for coalition-building across borders. NGOs from Canada, the United States, and Mexico have jointly filed citizen submissions before the NACEC. For example, in citizen submission SEM 99-002, several U.S. environmental groups joined with three Mexican groups and one Canadian organization to challenge the U.S. government for its failure to enforce the Migratory Bird Treaty Act.

As in the case involving the Migratory Bird Treaty Act, the challenged behavior or inaction often has transboundary effects. One citizen submission has involved a shared watercourse, the Great Lakes. NACEC submission SEM 98-003, filed by Canadian and U.S. environmental and public health groups and a Canadian individual,²⁸⁷ concerned the effects from the fallout of persistent toxic substance emissions from incinerators on Great Lakes water quality. The complainants alleged that the United States was in clear violation of both U.S. domestic laws and United States-Canada treaties, including the GLWQA of 1972. Specifically, they alleged that the United States was violating its environmental laws governing airborne emissions of dioxin/furan, mercury, and other persistent toxic substances falling into the Great Lakes from solid waste and medical waste incinerators.

The initial complaint was submitted to the NACEC on May 27, 1998. The Secretariat reviewed the complaint and determined that SEM 98-003 did not meet the standards set forth in Article 14(1). The Secretariat stated: "Article 14(1) reserves the Article 14 process for claims that a Party is 'failing to effectively enforce its environmental law…,'"²⁸⁸ and concluded that the underlying issue did not qualify as "enforcement" because it related to standard setting and not to a failure to enforce an environmental law. The NACEC determined that standard setting is outside the range of Article 14, and the complained-of inaction was not subject to review.

In response to the decision, a revised submission was filed on January 5, 1999. In this second attempt, the submitters were more successful in obtaining Article 14 review. The Secretariat's review found that the revised submission required Article 14 review on two issues. These two issues were the asserted inspection-related failures and failure to effectively enforce the Clean Air Act (CAA).²⁸⁹ The Secretariat noted that these provisions of the CAA require the EPA Administrator to

notify the Governor of the State in which such emission originates, whenever the Administrator receives reports from any duly constituted international agency such as the IJC or [NACEC], that air pollution or pollutants emitted in the United States can "be reasonably anticipated to endanger public health or welfare in a foreign country."²⁹⁰

The Secretariat's response on this issue is interesting because it involves the adverse impacts of an action by one Party (the United States) on another country (Canada). On a related note the Secretariat ruled that the GLWQA of 1972 and the 1986 Agreement Between the Government of the United States of America and the Government of Canada Concerning the Transboundary Movement of Hazardous Waste could not be considered an "environmental law" for the purposes of Article 14.

This outcome is based on a previous decision reached in SEM 97-005.²⁹¹ In that case, three environmental organizations claimed that Canada was not fulfilling their obligations under the U.N. Convention on Biological Diversity (CBD) to protect threatened and endangered species of flora and fauna. The Secretariat concluded that international obligations stemming from Canada's ratification of CBD do not constitute the domestic law of Canada and therefore do not create "environmental law" for the purpose of Article 14 submissions.²⁹² The Secretariat noted that because Ratification Instrument of the Convention merely constituted a one-time administrative act by the Prime Minister of Canada, it could be distinguished from a "regulation," which has the effect of law.²⁹³

The Great Lakes case (SEM 98-003) met with a similar fate. On March 24, 2000, the Secretariat requested additional [31 ELR 11413] information from the United States to complete its determination regarding whether preparation of the factual record was warranted, generating a two-part response from the United States under Article 21(1)(b).²⁹⁴ The Secretariat issued a ruling on October 5, 2001, dismissing the proceeding on the ground that there was no evidence of serious, widespread noncompliance or of violations of incinerator emission standards left unaddressed by EPA.²⁹⁵ The decisions to date suggest that it would be difficult, although not impossible, for a future submission to successfully raise issues in respect of a Party's international obligations that would meet the criteria of Article 14(1).²⁹⁶

The NACEC also can conduct investigations and fact-finding outside of the citizen submission process. In the case of the Silva Reservoir investigation and fact-finding, thousands of migratory birds were dying as a result of water pollution in the Turbio River. Although action was taken at the national level in Mexico, Grupo de los Cien Internacional, Centro Mexicano de Derecho Ambiental (CEMDA), and the National Audubon Society requested the NACEC to prepare a report under Article 13 of the NAAEC.²⁹⁷ Notably, the decision to investigate was made with the consent of the Mexican government. This resulted in detailed studies of the environmental conditions in the area and the institutions responsible for addressing them, the undertaking of cleanup action, the establishment of a protected natural area, the creation of a Council for Public Participation to increase the public's involvement in state environmental procedures, and the development of a management plan for the Turbio River Watershed.²⁹⁸ The Silva Reservoir case demonstrates that requests for independent investigations by the NACEC need not be adversarial.

4. The BECC

The BECC certifies projects along the United States-Mexico border to ensure that the projects comply with all applicable environmental laws and involve the public. As part of the process, the BECC board of directors holds quarterly public meetings, where it is authorized to receive complaints from groups affected by BECC-assisted or certified projects. In order to file a complaint, two or more of the complainants "must reside in the area where the project(s) causing the effects is (are) located or in an area where the project(s)' effects are manifested or likely to be manifested based on the evidence."²⁹⁹ Substantively, the complaint "must be based on the health or environmental effect(s) of a project(s)" or on a threat of such effects that is supported by evidence.³⁰⁰

If the BECC board of directors accepts the complaint, the board may request additional information from "the complainant, the [BECC] Advisory Council, [or] any other public or private institution it deems appropriate."³⁰¹ The advisory council then prepares a report, "providing its recommendations regarding the complaint and the basis for such recommendations."³⁰² The board may also solicit information or recommendations from specific individuals and organizations or from the general public.³⁰³ The board makes the final determination in writing, providing "a clear statement of the conclusion," "a full statement of the reasons supporting the conclusion," and "steps, if any, the board intends to take as a result of the complaint, including a time-table for undertaking such steps."³⁰⁴ The determination must be made publicly available.³⁰⁵ Since no complaints have been filed on certified projects, the effectiveness of this mechanism remains uncertain.

The BECC also has developed procedures by which certain interested parties may obtain an Independent Assessment to determine whether the provisions of Chapter I of the agreement (dealing with BECC operations and project certification) or of the procedures adopted by the board of directors pursuant to that chapter have been observed.³⁰⁶ A request can be made by any NGO, group, or border community "through a duly appointed representative," or a state or local authority along the border.³⁰⁷ The complaint must be in writing, promptly follow the noncompliance, and contain sufficient information and arguments to evaluate the claim.³⁰⁸ The process for assessing the merits of the complaint and whether to proceed are open to public scrutiny, and the eventual report is also publicly available.³⁰⁹ Again, this mechanism remains largely dormant.

D. Implementing Access to Justice

Recent years have seen great strides in developing international norms on access to justice and enshrining them in domestic and international institutions. Nevertheless, as a practical matter, access to justice remains very much an emerging norm. As a general rule, many conventions, declarations, and scholars now highlight the importance of access to justice in environmental management generally, and in the management of transboundary watercourses in particular. However, specific requirements, institutional mechanisms, and practices remain lacking in many instances.

[31 ELR 11414]

V. Developing and Implementing Public Involvement in the Management of Transboundary Watercourses in Southern Africa

This Article has highlighted public involvement in transboundary watercourses in Africa, Europe, North America, and Southeast Asia. With much of the experience coming from outside the region, it is worth considering: (1) are the general principles of public involvement consonant with the cultural and political realities of Africa in general and southern Africa in particular? (2) if so, to what extent might the experiences from around the world regarding public involvement in managing transboundary watercourses be relevant to southern Africa? and (3) what might constitute the initial steps in developing and implementing public involvement in southern African transboundary watercourses?

A. Relevance of Public Involvement Principles to Southern Africa

The norms ensuring access to information and public participation in the management of international watercourses are rapidly crystallizing. The norms and institutions governing access to justice are also emerging, but remain nascent. These public involvement norms will continue to develop as regional and global initiatives become more specific and more binding. Indeed, U.N. Secretary-General Kofi Annan observed that "the 2002 Special Session of the [U.N.] General Assembly marking the 10th anniversary of the Earth Summit would be a timely occasion to examine the relevance of the Aarhus Convention as a possible model for strengthening the application of Principle 10 in other regions of the world."³¹⁰

The 1989 African Alternative Framework for Structural Adjustment Programs³¹¹ and the 1990 African Charter for Popular Participation in Development and Transformation³¹² established the importance of public involvement to Africa more than a decade ago. These Pan-African instruments responded to traditional development mechanisms that inadequately included civil society and local governments in the decisionmaking processes.³¹³ While the charter is not legally binding, many scholars have resorted to its declarations,³¹⁴ and regional and national initiatives appear to have drawn from it.³¹⁵ At the local level, community participation in natural resource management has deep historical and cultural roots throughout Africa.³¹⁶

The SADC has developed a number of binding protocols on natural resources for Member states to adopt, including one on shared watercourses and one on mining.³¹⁷ These protocols incorporate principles of public involvement to varying degrees. As discussed earlier, the SADC Protocol anticipates the collection of information on natural and man-made environmental conditions, making the information publicly available, and promoting public participation in the management of transboundary watercourses in southern Africa.³¹⁸

The SADC Mining Protocol also mandates public access to information and public participation, much of it focused on providing an enabling environment for the private sector.³¹⁹ Nevertheless, Article 8 on "Environmental Protection" compels states to pursue a "regional approach in conducting [EIAs] especially in relation to shared systems and cross-border environmental effects."³²⁰ Other environmental priorities include sustainable development, environmental protection, and sharing information on environmental protection and rehabilitation.³²¹

SADC countries may also incorporate public involvement principles and mechanisms into a binding environmental protocol which is currently being developed. Already, a December 1998, UNEP/International Referral System for Sources of Environmental Information (INFOTERRA) meeting on "Building Bridges for the Aarhus Convention" in Gaborone, Botswana, considered how access to information, process, and justice could be advanced in the SADC region.

Finally, many nations in southern Africa have constitutional provisions and laws that already guarantee that citizens have access to information, process, and justice. For example, Malawi, Mozambique, and South Africa all have a constitutional right of access to information (with Botswana, Zambia, and Zimbabwe having more limited rights); South Africa has a constitutional right for the public to participate in governmental decisionmaking processes; and almost all SADC countries ensure that their citizens can go to court to protect their rights, which includes a right to life and often a right to a healthy environment.³²² Additionally, most [31 ELR 11415] SADC countries have an EIA law or sections of other laws that require an EIA.

Considering the African and SADC instruments (particularly the binding SADC protocols), the relevant constitutional and statutory authorities, and centuries of practice in community-based natural resource management, it is inescapable that public involvement is culturally relevant to southern Africa. The inquiry, then, turns to the extent to which public involvement should be developed for southern African transboundary watercourses.

B. Factors That Affect the Applicability of Experiences Relating to Public Involvement in Transboundary Watercourses

Experiences in different transboundary watercourses vary greatly depending on a range of geopolitical, historical, and social factors. When there are only a few riparian nations, agreements on transboundary watercourses are more likely to include the public and to do so more effectively. For example, a 1909 agreement between Canada and the United States on the management of their boundary waters and the North American Great Lakes included public participation provisions that remain unmatched in many contemporary agreements. The BECC agreement between the United States and Mexico is another such agreement, as is the one concerning Lake Victoria. Conversely, rivers with numerous riparian nations (such as the Nile) are likely to raise more conflicts. The number of different parties with different concerns likely contributed to the difficulties in implementing the ZACPLAN, although other factors had more of an influence on the outcome. Similarly, where communities straddle a watercourse, there frequently is more incentive to develop a management system that accounts for the interests of counterparts on the other side of the watercourse.³²³

A related factor is the degree to which nations share a cultural, historical, and social background. With this common basis, there is greater trust not only at the government level, but also at the popular level. As a result, the United States-Canada and Kenya-Tanzania-Uganda agreements have evolved more rapidly and include stronger provisions for public participation.

A highly sensitive international context can make international agreements harder to reach and governmental officials reluctant to open the door to private third parties whom they perceive as posing a very real danger of compromising their own position or of confusing the relationship. A context can become sensitive through economic or political instability, including warfare.³²⁴ The international context could also become sensitive due to actual, imminent, or prospective overburden of the available water, particularly where there is a historically dominant water user. The Nile River is highly polarized due to political instability and a desire on the part of some riparians to address economic woes by drawing on water that Egypt has historically consumed. The overdraft that such an action could precipitate would leave Egypt short and without another major source of water.³²⁵ In contrast, southern Africa generally presents a more stable economic and political environment, and the demand for available water is not as severe as it is along the Nile River. As a result, there appear to be more options for negotiating and for involving the public.

C. Advancing Public Involvement in Southern African Transboundary Watercourses

In developing and implementing norms and mechanisms for public involvement in the management of transboundary watercourses in southern Africa, it is possible to expand on and extend experiences with domestic laws and institutions. Siri Eriksen suggests a general strategy regarding cooperative management of transboundary watercourses that also applies in the context of public involvement: "Focusing on water quality issues avoids contention around water allocation. Water quality is also usually a concern shared by all riparians in some way. Co-operation on scientific assessments on a drainage basin and processes within it has been a starting point for basinwide co-operation."³²⁶ It might also be prudent to start with transboundary watercourses that flow between two nations only and are not politically sensitive. For those reasons, the Okavango might not be a good candidate as a "trial" river, as it flows through three nations and Botswana and Namibia are already sensitive about its development.

Access to information can be promoted in southern Africa through a number of discrete mechanisms, many of which are relatively low cost. Making information available upon request obviates the need for a sizeable staff and infrastructure, and the imposition of a reasonable fee (to cover copying, for example) can further reduce the burden on an authority. Establishing a resource center is a more expensive endeavor, but it might constitute a project that foreign donors would support. Another, less costly option would be to develop a website. While this could benefit many of the NGOs and academic institutions in the region, it is unlikely that many ordinary citizens in southern Africa would benefit, as Internet access is sporadic and costly. Producing a periodic "state of the river" report poses certain cost-related difficulties, which can be minimized, particularly if the report is fairly brief. There is also the possibility of publishing the report every two years rather than annually, again reducing the production and printing costs. Such a report initially could focus on water quality issues, draw upon a modest number of sampling points, and grow from there.

As a first step toward developing public participation in the management of transnational watercourses in southern Africa, EIA can be developed at the national level and harmonized through the subregion or across rivers. As it is unlikely that river management bodies will have the funds necessary to conduct detailed EIAs or lengthy public hearings on them, the river body could require project proponents to conduct an EIA for projects likely to have a significant environmental impact and then open the discussion to the public. One easy step is to open meetings of the river management authorities up to the public. It costs relatively little, and the public could participate as either silent observers or as participating, but nonvoting observers. Considering the nascent status of public participation in the region's transboundary waters and the lack of internationally agreed-upon [31 ELR 11416] details governing what constitutes meaningful public participation in the development of plans, policies, or binding norms, it is likely to be a while before there is greater public involvement in the development of these broader norms in southern Africa.

At this point, there is no body in southern Africa properly charged to hear a claim from a citizen or NGO regarding a transboundary watercourse. As such a proposition would be both expensive and politically challenging, it is unlikely to be realized in the near future. In the meantime, nations in the region can establish broad interpretations of standing to facilitate access to their courts both by their nationals and by others who may be affected, particularly those living in other riparian nations.

In developing these norms—which give a voice to citizens, NGOs, and local governments—it will be necessary to balance the roles of international, national, and local actors in the management of transboundary watercourses.³²⁷ The national and international actors are essential to ensuring that local control does not lead to parochial dominance and unsustainable abuse of natural resources; and the participation of local actors is necessary for the norms and institutions to be relevant and have local support (and thus be implemented) on the ground.

VI. Conclusion

While public involvement in the management of transboundary watercourses goes back decades, if not millenia,³²⁸ the last 10 years has seen a remarkable proliferation of international agreements and institutional practice. At the same time, national laws and institutions charged with the management of freshwater resources have incorporated principles of transparency, public participation, and access to justice.

Public involvement includes access to information, public participation in the decisionmaking processes, and access to judicial and administrative redress. In the context of transboundary watercourses, access to information ensures that citizens and other members of civil society have the ability to request from governmental and intergovernmental authorities information on the status of the watercourse and its tributaries (including water flow and water quality); factors that could affect the watercourse or its tributaries; and norms, policies, and management plans that shape activities relevant to the watercourse. Public participation includes the opportunity for members of the public to submit comments (and have the authority take due account of the information) regarding specific activities that could affect the watercourse; the development of norms, policies, and plans that govern the watercourse; and even in the development of the transboundary watercourse agreements themselves. Access to justice includes resort to national courts and agencies, international courts, and fact-finding and legislative bodies.

In the 1995 SADC Protocol and in the preceding 1987 ZACPLAN, southern Africa has been a leader in developing international instruments that envision public involvement as a necessary component of sustainably managing transboundary watercourses. This Article has highlighted a number of concrete experiences from watercourses around the world that might be relevant in the further development and in the implementation of public involvement in southern African watercourses. These experiences build upon a history of community management of natural resources, national laws and constitutional provisions, and southern African instruments. As such, they can provide significant guidance for southern African decisionmakers in ensuring that the public has a voice in the management of this critical resource.

1. See, e.g., Dinah Shelton, The Participation of Nongovernmental Organizations in International Judicial Proceedings, 88 AM. J. INT'L L. 611 (1994); Chiara Giorgetti, The Role of Nongovernmental Organizations in the Climate Change Negotiations, 9 COLO. J. INT'L ENVTL. L. & POL'Y 115 (1998); Celia R. Taylor, The Right of Participation in Development Projects, 13 DICK. J. INT'L L. 69 (1994). For a history of international instruments incorporating public participation, see STEPHEN STEC & SUSAN CASEY-LEFKOWITZ, THE AARHUS CONVENTION: AN IMPLEMENTATION GUIDE 10-14 (Regional Envtl. Center, Budapest 2000), available at http://www.unece.org/env/pp/acig.htm (last visited Mar. 20, 2001).

2. E-mail from Charles Bourne to Carl Bruch, ELI (Mar. 23, 2000) (on file with author); see also Lenard Millich & Robert G. Varady, Openness, Sustainability, and Public Participation in Transboundary River-Basin Institutions, Part II: Regulatory, Closed, and Top-Down Paradigms of River Basin Management (unpublished manuscript), at http://ag.arizona.edu/OALS/ALN/aln44/varady-milish2.html (last visited May 20, 2001) ("Few transnational environmental accords accommodate, let alone encourage, formal participation by NGOs, community-based organizations, or other spokespersons for public interests.").

3. NARENDRA SHARMA ET AL., AFRICAN WATER RESOURCES: CHALLENGES AND OPPORTUNITIES FOR SUSTAINABLE DEVELOPMENT 53 (World Bank Tech. Paper No. 331, 1996).

4. Id. at 65.

5. MINGSARN KAOSA-ARD ET AL., TOWARDS PUBLIC PARTICIPATION IN MEKONG RIVER BASIN DEVELOPMENT 20 (1998).

6. Id. at 20-21.

7. See CAROLY A. SHUMWAY, FORGOTTEN WATERS: FRESHWATER AND MARINE ECOSYSTEMS IN AFRICA 86-87 (1999).

8. See SHARMA ET AL., supra note 3, at 27-30 (detailing the lack of governmental capacity and the need for civil society to supplement the scarce governmental resources devoted to managing water).

9. Lenard Milich & Robert G. Varady, Managing Transboundary Resources: Lessons From River-Basin Accords, 40 ENV'T 10, 32 (1998).

10. Id. at 34.

11. SIRI ERIKSEN, SHARED RIVER AND LAKE BASINS IN AFRICA: CHALLENGES FOR COOPERATION (African Centre for Tech. Studies, Nairobi 1998).

12. DEBORAH SANDLER ET AL., PROTECTING THE GULF OF AQABA: A REGIONAL ENVIRONMENTAL CHALLENGE 470 (Envtl. L. Inst. 1994).

13. Catherine Ferrier, Towards Sustainable Management of International Water Basins: The Case of Lake Geneva, 9 RECIEL 52, 61 (2000) (noting that environmental organizations do not face the political and administrative constraints that bind governments and thus "have a flexible enough structure to carry on transboundary campaigns").

14. KAOSA-ARD ET AL., supra note 5, 29; see also Celia R. Taylor, The Right of Participation in Development Projects, 13 DICK. J. INT'L L. 72-73 (1994) (highlighting the numerous problems associated with the Sardar Sarovar water project in India, which lacked public involvement).

15. SANDLER ET AL., supra note 12, at 470-71 (discussing the role of Great Lakes United in facilitating discussions on the North American Great Lakes).

16. See Milich & Varady, supra note 9, at 37.

17. See, e.g., SHUMWAY, supra note 7, at 85-86.

18. For a history of the Hudson Riverkeepers, the first such organization, see JOHN CRONIN & ROBERT F. KENNEDY JR., THE RIVERKEEPERS (1997).

19. E.g., Kurt Fernandez, Environmental Agency Sets Up Hotline for Citizens to Report Suspected Violations, Daily Env't Rep. (BNA), Jan. 27, 2000, at A-4.

20. Taylor, supra note 14, at 73.

21. Water and Health Protocol to the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, done at London, June 18, 1999, U.N. Doc. E/ECE/MP.WAT/AC. 1/1998/10, available at http://www.unece.org (last visited July 20, 2001) [hereinafter London Protocol]; see also ENVIRONMENTAL LAW INST., INFORMATION ACCESS MECHANISMS: COLLECTING AND DISSEMINATING THE INFORMATION NECESSARY FOR ENVIRONMENTAL PROTECTION (1993); ENVIRONMENTAL LAW INST., THE ROLE OF THE CITIZEN IN ENVIRONMENTAL ENFORCEMENT (1992); ENVIRONMENTAL LAW INST., PUBLIC PARTICIPATION IN ENVIRONMENTAL REGULATION (1991).

22. Agreement on the Cooperation for the Sustainable Development of the Mekong River Basin (entered into force at Chiang Mai, Thailand, Apr. 5, 1995), available at http://www.mekongforum.org/95agree.html (last visited June 20, 2001).

23. Id. art. 12.

24. Id. arts. 15-20.

25. Id. arts. 21-27.

26. Id. arts. 28-33.

27. Convention Between the United States of America and the United States of Mexico to Facilitate the Carrying Out of the Principles Contained in the Treaty of 12 November 1884 and to Avoid the Difficulties Occasioned by Reason of the Changes Which Take Place in the Beds of the Rio Grande and Colorado Rivers, Mar. 1, 1889, T.S. 232, 26 Stat. 1512 (establishing the International Boundary Commission, the predecessor to the IBWC); Treaty of 3 February 1944 With Mexico Respecting the Utilization of the Colorado and Tijuana Rivers and the Rio Grande, 59 Stat. 1219 (1945) (establishing the IBWC).

28. See also North American Agreement on Environmental Cooperation (NAAEC), Sept. 8-14, 1993, U.S.-Can.-Mex., arts. 14 & 15, 32 I.L.M. 1482 (1993) [hereinafter NAAEC].

29. THE WORLD ALMANAC AND BOOK OF FACTS (Robert Famighetti et al. eds., 1993).

30. Treaty Between the United States and Great Britain Relating to Boundary Waters, and Questions Arising Between the United States and Canada, Jan. 11, 1909, 36 Stat. 2448 [hereinafter IBWT]; Agreement Between Canada and the United States of America on Great Lakes Quality, Nov. 22, 1978.

31. For an assessment of the IJC, see ENVIRONMENTAL LAW INST., AN EVALUATION OF THE EFFECTIVENESS OF THE INTERNATIONAL JOINT COMMISSION (1995).

32. Great Lakes Water Quality Agreement of 1972 (amended 1978 and 1983), available at http://www.ijc.org/agree/quality.html [hereinafter GLWQA].

33. Convention on Cooperation for the Protection and Sustainable Use of the Danube River (entered into force Oct. 22, 1998), available at http://ksh.fgg.uni-lj.si/danube//envconv/index.htm [hereinafter Danube River Protection Convention].

34. Convention on the Protection of the Rhine, done at Berne, April 12, 1999.

35. Agreement of April 29, 1963, Concerning the International Commission for the Protection of the Rhine Against Pollution, done at Berne [hereinafter Rhine Convention]; Additional Agreement to the Agreement, Signed in Berne, April 29, 1963, Concerning the International Commission for the Protection of the Rhine Against Pollution, done at Berne, Dec. 3, 1976; Rhine Action Programme (Sept. 30, 1987).

36. GLOBAL ENVIRONMENT FACILITY, KENYA, TANZANIA, UGANDA: LAKE VICTORIA ENVIRONMENTAL MANAGEMENT PROJECT, PROJECT DOCUMENT (Report No. 15541-AFR, 1996).

37. Memorandum of Understanding Between the Republic of Kenya and the United Republic of Tanzania and the Republic of Uganda for Cooperation on Environmental Management, done at Nairobi, Oct. 22, 1998 [hereinafter East African MOU].

38. Treaty for the Establishment of the East African Community, done at Arusha, Tanzania, Nov. 30, 1999 [hereinafter East African Treaty].

39. See id. chs. 19, 20, 24, arts. 112(2)(b), 112(2)(d), 112(2)(i).

40. Press Release, World Bank, Nile Basin Initiative Launches Secretariat Group to Develop and Manage Nile Waters Sustainably 22-24 (Sept. 21, 1999), available at http://www.iwra.siu.edu/listerver/iwranews/199909.html (last visited June 20, 2001) (noting that this effort is a precursor to a more formal legal and institutional structure) [hereinafter Nile Basin Release]; NILE BASIN INITIATIVE SECRETARIAT, THE NILE BASIN INITIATIVE BACKGROUND (2000).

41. NILE BASIN INITIATIVE SECRETARIAT, supra note 40.

42. WORLD WATER FORUM, THE NILE RIVER BASIN (2000), available at http://www.worldwaterforum.org/Dossiers/nile_basin.html (last visited June 20, 2001).

43. WORLD BANK, THE NILE BASIN INITIATIVE (2000), available at http://www.worldbank.org/afr/nilebasin/ (last visited June 20, 2001).

44. INBA, Mission Statement 1, at http://www.tecconile.org/t1-4-1.htm (last visited June 20, 2001).

45. Convention on the Law of the Non-Navigational Uses of International Watercourses, May 21, 1997, G.A. Res. 51/229, U.N. GAOR, 51st Sess., 99th plen. mtg., U.N. Doc. A/RES/51/229, reprinted in 31 I.L.M. 700 (1997) [hereinafter Convention on the Non-Navigational Uses of International Watercourses]; status of the ratification of the convention, at http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXXVII/treaty30.asp (last visited May 20, 2001).

46. United Nations Economic Commission for Europe (UN/ECE) Convention on the Protection and Use of Transboundary Watercourses and International Lakes (entered into force Oct. 6, 1996), U.N.T.S. 33207, 31 I.L.M. 1312 (1992), available at http://www.unece.org/env/water (last visited May 20, 2001) [hereinafter Helsinki Convention]; status of the ratification of the Helsinki Convention, at http://www.unece.org/env/water/status/lega_wc.htm (last visited June 20, 2001); 1999 Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, done at London, June 18, 1999, available at http://untreaty.un.org/English/notpubl/27-5a-eng.htm (last visited June 20, 2001). See also Helsinki Rules on the Uses of the Waters of International Rivers, 52 I.L.A. 484 (1967).

47. Status of ratification of the Protocol on Water and Health, available at www.unece.org/env/water/status/lega_wh.htm (last visited June 20, 2001).

48. Agreement on the Action Plan for the Environmentally Sound Management of the Common Zambezi River System, done at Harare, Zimbabwe, opened for signature May 28, 1987, reprinted in 27 I.L.M. 1109 (1988) [hereinafter ZACPLAN]. See Mikiyasu Nakayama, Politics Behind Zambezi Action Plan, 1 WATER POL'Y 397 (1999); see also Mikiyasu Nakayama, Successes and Failures of International Organizations in Dealing With International Waters, 13 WATER RES. DEV. 367 (1997).

49. 1995 Protocol on Shared Watercourse Systems in the Southern Africa Development Community (SADC) Region, done at Johannesburg, Aug. 1995 (entered into force Sept. 1998), art. 2(5), available at http://www.sadcwscu.org/ls/protocol/protocol-back.htm (last visited June 20, 2001) [hereinafter SADC Protocol]. See SIRI ERIKSEN, SHARED RIVER AND LAKE BASINS IN AFRICA: CHALLENGES FOR COOPERATION 25 (African Centre for Technology Studies 1998).

50. Anthony R. Turton & Neville Quinn, The Shared River Initiative on the Incomati (paper presented to the Portfolio Committee for Environmental Affairs and Tourism in the National Assembly during the Globe Southern Africa "Partnership for Sustainability II" Conference, Sept. 21-22, 2000), at 7, available at http://www.up.ac.za/academic/libarts/polsci/awiru/op32.html) (last visited May 20, 2001); Neville Quinn. The Shared Rivers Initiative: Building a Common Vision for International River Basins in Southern Africa, GLOBE-S. AFRICA NEWSL., Mar./Apr. 2000, at 6.

51. Turton & Quinn, supra note 50, at 8.

52. Id. at 8-9.

53. See ERIKSEN, supra note 49, at 30-31.

54. For a comprehensive review of the development of public involvement and environmental governance in global and regional instruments and institutions, see Carl E. Bruch, African Environmental Governance: Opportunities at the Regional, Subregional, and National Levels, in AFRICAN ENVIRONMENTAL LAW AND POLICY (Beatrice Chaytor & Kevin Gray eds., forthcoming 2001).

55. Rio Declaration on Environment and Development, U.N. Conf. on Econ. Dev., 47th Sess. U.N. Doc. A/CONF.151/REV.1 (1992), reprinted in 31 I.L.M. 874 (1992).

56. Adoption of Agreements on Environment and Development, U.N. Conf. on Econ. Dev., 47th Sess., Agenda Item 21, U.N. Doc. A/CONF.151/4 (1992). For sections incorporating transparency, participation, and accountability in environmental management generally, see id. chs. 12, 19, 27, 36, 37 & 40.

57. Chapter 18 of Agenda Item 21 is entitled "Protection of the Quality and Supply of Freshwater Resources: Application of Integrated Approaches to the Development, Management and Use of Water Resources."

58. UN/ECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), art. 3.5 (1998) [hereinafter Aarhus Convention].

59. Id. art. 3.9.

60. Jeremy Wates, Introducing the Aarhus Convention: A New International Law on Citizens' Environmental Rights (background paper distributed at the Pan-European ECO Forum Conference on Public Participation, Chisinau, Moldova, Apr. 16-18, 1999).

61. Inter-American Strategy for the Promotion of Public Participation in Decision-Making for Sustainable Development (2000) [hereinafter ISP].

62. DRAFT OF THE GUIDING PRINCIPLES ON PUBLIC INVOLVEMENT IN ENVIRONMENTAL ASPECTS IN THE ASEM COUNTRIES (Nov. 2000), art. 1, available at http://www.vyh.fi/eng/intcoop/regional/asian/asem/guidel.htm (last visited June 20, 2001) [hereinafter DRAFT ASEM GUIDELINES].

63. Member countries of ASEM include Austria, Belgium, Brunei, China, Denmark, Finland, France, Germany, Greece, Indonesia, Ireland, Italy, Japan, Luxembourg, Malaysia, the Netherlands, Philippines, Portugal, Singapore, South Korea, Spain, Sweden, Thailand, the United Kingdom, Vietnam, and the European Commission.

64. See Valentina Okaru-Bisant, Institutional and Legal Frameworks for Preventing and Resolving Disputes Concerning the Development and Management of Africa's Shared River Basins, 9 COLO. J. INT'L ENVTL. L. & POL'Y 331, 354-61 (1998).

65. See, e.g., Chris Wold, Multinational Environmental Agreements and the GATT: Conflict and Resolution?, 26 ENVTL. L. 841, 847-67 (1996) (summarizing WTO/GATT decisions with environmental implications); Jessica Wilson, Why Does the WTO Need Civil Society?, in TRADE ENVIRONMENT AND SUSTAINABLE DEVELOPMENT, VIEWS FROM SUB-SAHARAN AFRICA AND LATIN AMERICA, A READER 85-88 (Peider Konz ed., 2000).

66. World Trade Organization, Report of the Appellate Body, United States-Import Prohibition of Certain Shrimp Products, Oct. 12, 1998, WT/DS58/AB/R, reprinted in 38 I.L.M. 118, 121 (1999) (adopted Nov. 6, 1998) [hereinafter U.S.-Shrimp Appellate Body Report].

67. Statute of the International Court of Justice, done at San Francisco, June 26, 1945 (entered into force Oct. 24, 1945), 59 Stat. 1031, T.S. No. 993 (1945).

68. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), I.C.J. General List No. 95, reprinted in 35 I.L.M. 814 (1996).

69. UNITED NATIONS DEVELOPMENT PROGRAMME ON SUSTAINABLE HUMAN DEVELOPMENT, THE UNITED NATIONS SYSTEM-WIDE SPECIAL INITIATIVE ON AFRICA BOOKLET (1995), available at http://www.undp.org/news/unsia00.htm (last visited June 20, 2001).

70. Id. pt. II(D)(II); see also UNITED NATIONS ENVIRONMENT PROGRAMME/UNITED NATIONS DEVELOPMENT PROGRAMME (UNEP/UNDP)/DUTCH JOINT PROJECT ON ENVIRONMENTAL LAW AND INSTITUTIONS IN AFRICA, DEVELOPMENT AND HARMONIZATION OF ENVIRONMENTAL LAWS, REPORT ON THE LEGAL AND INSTITUTIONAL ISSUES IN THE LAKE VICTORIA BASIN 64-65 (1999) (discussing the relevance of the Fair Share Strategy to the management of Lake Victoria) [hereinafter UNEP/UNDP/DUTCH JOINT PROJECT].

71. See, e.g., DRAFT ASEM GUIDELINES, supra note 62, art. 1; NAAEC, supra note 28, art. 10(7).

72. See NAAEC, supra note 28, art. 10(5)(a); ISP, supra note 61, policy recs. 1 (communication mechanisms), 2 (legal and regulatory frameworks).

73. See Aarhus Convention, supra note 58, art. 2.3; DRAFT ASEM GUIDELINES, supra note 62, art. 1; ISP, supra note 61, Annex I: Recommendations for Action, 2.1.

74. Aarhus Convention, supra note 58, art. 4.1; DRAFT ASEM GUIDELINES, supra note 62, arts. 1, 2.

75. Aarhus Convention, supra note 58, art. 3(9); DRAFT ASEM GUIDELINES, supra note 62, art. 1.

76. Aarhus Convention, supra note 58, arts. 4.2 ("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"), 4.8 (reasonable fee, with possibility of waiver for public interest); DRAFT ASEM GUIDELINES, supra note 62, arts. 7 (reasonable time frame), art. 8 (free to review and reasonable fee to copy); ISP, supra note 61, Annex I: Recommendations for Action, 2.1 (timely).

77. Aarhus Convention, supra note 58, art. 4.5.

78. See id. arts. 4.3, 4.4 (exemptions "shall be interpreted in a restrictive way, taking into account the public interest served by disclosure and taking into account whether the information requested relates to emissions into the environment"); DRAFT ASEM GUIDELINES, supra note 62, art. 6 (listing grounds, but also noting that "grounds for refusal are to be interpreted in a restrictive way; the public interest served by disclosure").

79. Aarhus Convention, supra note 58, art. 4.7; DRAFT ASEM GUIDELINES, supra note 62, art. 6.

80. Aarhus Convention, supra note 58, art. 4.6; DRAFT ASEM GUIDELINES, supra note 62, art. 6.

81. Aarhus Convention, supra note 58, art. 5; DRAFT ASEM GUIDELINES, supra note 62, art. 4.

82. Aarhus Convention, supra note 58, art. 5.1(b); DRAFT ASEM GUIDELINES, supra note 62, art. 4.

83. Aarhus Convention, supra note 58, art. 5.4; DRAFT ASEM GUIDELINES, supra note 62, art. 9; NAAEC, supra note 28, art. 2.1(a).

84. Aarhus Convention, supra note 58, art. 5.9; DRAFT ASEM GUIDELINES, supra note 62, arts. 4, 10 (establishment of registers).

85. Aarhus Convention, supra note 58, arts. 5.3(d), 5.8; DRAFT ASEM GUIDELINES, supra note 62, art. 9.

86. See Wates, supra note 60, at 4; TAKING STOCK: NORTH AMERICAN POLLUTANT RELEASES AND TRANSFERS (2000).

87. Aarhus Convention, supra note 58, art. 5.2; DRAFT ASEM GUIDELINES, supra note 62, art. 6.

88. Aarhus Convention, supra note 58, arts. 5.5, 5.7; DRAFT ASEM GUIDELINES, supra note 62, arts. 11-13.

89. See Okaru-Bisant, supra note 64, at 343.

90. See, e.g., Treaty for Amazonian Cooperation, done at Brasilia, July 3, 1978, reprinted in 17 I.L.M. 1045 (1978), arts. 9 (collaborative research), 11 (joint studies).

91. SADC Protocol, supra note 49, art. 2(5).

92. See also ZACPLAN, supra note 48, Annex I, para. 14 (identifying as a primary problem in managing the Zambesi the "inadequate information on environmental impacts of water resources and related development projects, e.g., hydropower, irrigation, etc." and "inadequate dissemination of information to the public").

93. See Okaru-Bisant, supra note 64, at 341.

94. SHARMA ET AL., supra note 3, at 33.

95. See id. at 33-34; ERIKSEN, supra note 11, at 39-40; Okaru-Bisant, supra note 64, at 343; ZACPLAN, supra note 48, Annex I, para. 20-28 (recommending environmental assessments).

96. Nile Basin Release, supra note 40.

97. See London Protocol, supra note 21, art. 5(i) (general principle that "access to information and public participation in decision-making concerning water and health are needed …").

98. INBA, Mission Statement, supra note 44.

99. Helsinki Convention, supra note 46, arts. 11(3)(c), 16(1)(c).

100. Id. art. 16(2).

101. London Protocol, supra note 21, arts. 6(2), 7(1)-(2); see also ECE/UNEP NETWORK OF EXPERTS ON PUBLIC PARTICIPATION AND COMPLIANCE, GUIDANCE ON PUBLIC PARTICIPATION IN WATER MANAGEMENT AND FRAMEWORK FOR COMPLIANCE WITH AGREEMENT ON TRANSBOUNDARY WATERS 21 (United Nations 2000) (also specifying information on floods and ice drifts).

102. London Protocol, supra note 21, art. 7(3).

103. Id. art. 8(1)(iii).

104. Danube River Protection Convention, supra note 33, art. 9(4).

105. Id. arts. 9(4), 14(1).

106. Article 5(d)(iv) of the SADC Protocol requires states to collect monitoring data on shared watercourses, but there is no specific requirement that this information be made publicly available.

107. See ERIKSEN, supra note 11, at 31.

108. See id. at 35-36.

109. Id.

110. GLWQA, supra note 32, Annex 11, § 3.

111. Id. art. 9(3), (4).

112. See http://www.great-lakes.net/gis (last visited June 20, 2001).

113. See http://smigs.usgs.gov/SMIG/features_0301/drifters.tb1l.gif (last visited June 20, 2001).

114. See http://www.lrd.usace.army.mil/gl/wq_rpt.htm (last visited June 20, 2001).

115. See http://www.glerl.noaa.gov/data/now/ (last visited June 20, 2001).

116. Helen Ingram et al., Managing Transboundary Resources: Lessons From Ambos Nogales, 6 ENV'T 33, 34 (1994).

117. Rio Grande Flow Conditions; Historical Mean Daily Discharge Data, at http://www.ibwc.state.gov/wad/flowdata.htm (last visited June 20, 2001).

118. MEKONG RIVER COMM'N, ANNUAL REPORT 14 (1999) [hereinafter MRC].

119. Id. at 15.

120. See, e.g., Mekong Sources, at http://www.mekongsources.com (last visited June 20, 2001).

121. SADC Protocol, supra note 49, art. 5(d)(iii).

122. East African Treaty, supra note 38, art. 112(2)(b); East African MOU, supra note 37, art. 14.

123. See, e.g., East African MOU, supra note 37, art. 8.

124. IBWT, supra note 30, III Rules of Procedure, rule 15(2).

125. NAAEC, supra note 28, BECC, Procedures Regarding Public Notice and Comment on Project Applications' (implementing art. 2, § 4(2) of the BECC Convention).

126. Rhine Convention, supra note 35, art. 14(3).

127. Id.

128. IBWT, supra note 30, III Rules of Procedure, rule 11(1)-(3).

129. Id. art. § 11(6).

130. Id. art. § 11(3).

131. Id. art. 16.

132. See London Protocol, supra note 21, arts. 6, 7, 10.

133. IBWT, supra note 30, III Rules of Procedure, rule 6(c).

134. See Milich & Varady, supra note 9, at 39-40; IBWT, supra note 30, III Rules of Procedure, rule 11(1). In fact, the two Great Lakes Regional Offices "provide a public information service for the programs, including public hearings, undertaken by the Commission and its Boards." Terms of Reference for the Joint Institutions and the Great Lakes Regional Office, art. 3(b)(ii).

135. London Protocol, supra note 21, art. 6(2).

136. Ferrier, supra note 13, at 58 (citing art. 17).

137. See, e.g., IBWT, supra note 30, III Rules of Procedure, rule 11.

138. For a comprehensive list of means to disseminate information, see KAOSA-ARD ET AL., supra note 5, at 51.

139. See id. at 10-11.

140. GLWQA, supra note 32, art. 8(3).

141. MRC, supra note 118, at 5; East African MOU, supra note 37, art. 16(2)(b) ("resource centres on environmental management including environmental law, forestry, wildlife, pollution management, environmental information, [EIAs], hazardous and non-hazardous wastes management, toxic and hazardous chemicals, chemical standards, water and land resources management").

142. See KAOSA-ARD ET AL., supra note 5, at 31.

143. See CARL BRUCH ET AL., CONSTITUTIONAL ENVIRONMENTAL LAW: GIVING FORCE TO FUNDAMENTAL PRINCIPLES IN AFRICA 41-62 (Envtl. L. Inst. 2000).

144. NGO Forum on Cambodia, Mekong People: The Role of Local Communities in Hydro-Power Planning; Towards Public Participation in S/EIA, Cambodia, UNESCAP/E7 Regional Workshop on EIA for Hydropower Development Emphasizing Public Participation, Bangkok, Thailand (Nov. 20-24), Conference Proceedings, at 3, 7, 31, at http://www.bigpond.com.kh/users/ngoforum/WorkingGroupIssues/Environment/mekongpeople.htm.

145. Id. at 16.

146. Id. at 15-16.

147. Agenda Item 21, supra note 56, § 18.9(c); see also id. §§ 18.12(n) (developing techniques in public participation); 18.19; 18.22; 18.50(b)(iii); 18.50(d) (public information and participation on drinking water issues); 18.59(d) (public participation in urban water issues); 18.62; 18.68(b) (participation of rural communities in all phases of water management).

148. DRAFT ASEM GUIDELINES, supra note 62, arts. 22-24; in the transboundary context, see UN/ECE Convention on Environmental Impact Assessment in a Transboundary Context, adopted at Espoo, Finland, Feb. 25, 1991, arts. 2(2), 6, 30 I.L.M. 800, available at http://www.unece.org/env/eia/welcome.html [hereinafter Espoo Convention]; ISP, supra note 61, rec. 2.1.2.

149. Aarhus Convention, supra note 58, art. 6(2).

150. Id. art. 6(2).

151. Id. art. 6(3); DRAFT ASEM GUIDELINES, supra note 62, art. 24.

152. Aarhus Convention, supra note 58, art. 6(4); DRAFT ASEM GUIDELINES, supra note 62, art. 23.

153. Aarhus Convention, supra note 58, art. 6(6).

154. Id. art. 6(7).

155. Id. art. 6(8); DRAFT ASEM GUIDELINES, supra note 62, arts. 21, 24.

156. Aarhus Convention, supra note 58, art. 6(9).

157. See, e.g., ISP, supra note 61, rec. 2.1.2.

158. See id. ("Legislative and administrative bodies should ensure public access throughout the process of formulating and implementing policies, laws, and regulations, …" and including the establishment of performance standards); NAAEC, supra note 28, art. 1(h) (objective to "promote transparency and public participation in the development of environmental laws, regulations and policies").

159. Aarhus Convention, supra note 58, art. 7.

160. Id.

161. Id. art. 8.

162. See Bruch, supra note 54 (describing public participation in the conceptualization, negotiation, ratification, and implementation of the Aarhus Convention and the negotiation of the ISP); Giorgetti, supra note 1 (public participation in the global climate change dialogue).

163. See, e.g., Danube River Protection Convention, supra note 33, art. 7(5)(f).

164. SADC Protocol, supra note 49, art. 5(d)(i).

165. East African MOU, supra note 37, art. 14(2).

166. Id. art. 8(a).

167. UNEP/UNDP/DUTCH JOINT PROJECT, supra note 70, at xviii.

168. COUNCIL OF MINISTERS OF WATER AFFAIRS OF THE NILE BASIN STATES, POLICY GUIDELINES FOR THE NILE RIVER BASIN STRATEGIC ACTION PROGRAM 3, available at http://www.nilebasin.org/Documents/TACPolicy.html (last visited June 20, 2001).

169. Id. at 2-4.

170. See NAAEC, supra note 28, BECC, Procedures Regarding Public Notice, arts. 2 (applications for project certification), 3 (technical assistance requests), 4 (projects pending for certification).

171. Milich & Varady, supra note 9, at 39.

172. Id. at 40.

173. IBWT, supra note 30, III Rules of Procedure, rule 12.

174. Id. rule 15(2).

175. Id.

176. Id. rule 16(1).

177. Id. rule 20.

178. Id. rule 23(2)-(3).

179. Id. rule 23(4)-(5).

180. Id. rule 23(6).

181. Id. rule 11(1)-(2).

182. Id. rules 26, 27(2).

183. See id. rules 27(2), 29.

184. Personal Communication from Frank Bevacqua, Public Information Officer, U.S. Section of the IJC, to Seth Schofield of the Environmental Law Institute (Nov. 22, 1999).

185. Press Release, IJC, IJC to hold Public Hearings on Orders for Rainy and Namakan Lakes (May 11, 1999), available at http://www.ijc.org/news/rr11051999e.html (last visited June 20, 2001).

186. Press Release, IJC, Public Meeting Provides Report and Recommendations on Great Lakes Aquaculture (Sept. 21, 1999), available at http://www.ijc.org/news/wqb21091999ce.html (last visited June 20, 2001).

187. Press Release, IJC, IJC Recommends Moratorium on Bulk Removals and Sales of Great Lakes Water (Aug. 18, 1999), available at http://www.ijc.org/news/wqb21091999ce.html (last visited June 20, 2001); Press Release, IJC, IJC to Visit 12 Cities for Public Hearings on IJC's Interim Report on the Uses, Diversions, and Bulk Exports of Great Lakes Water (Sept. 3, 1999), available at http://www.ijc.org/news/cde03111999e.html (last visited June 20, 2001).

188. Personal Communication from John Jackson, Great Lakes United, to Molly McKenna, Environmental Law Institute (Mar. 17, 2000) (on file with author).

189. Id.

190. KAOSA-ARD ET AL., supra note 5, at 196.

191. Id. at 41; Trond Inge Kvaernevik, The Mekong Region, in ASSOCIATION FOR INTERNATIONAL WATER AND FOREST STUDIES, POWER CONFLICT (1994), available at http://www.solidaritetshuset.org/fivas/pub/power_ck7.htm (last visited July 14, 2001).

192. See KAOSA-ARD ET AL., supra note 5, at 32-33.

193. Id. at 34-35.

194. Id. at 35.

195. See, e.g., Rhine Convention, supra note 35, art. 14 (empowering the Rhine Commission to recognize NGOs as observers, to exchange information with NGOs, to invite NGOs to participate in commission meetings, and to consult specialists).

196. Milich & Varady, supra note 9, at 39.

197. MEKONG RIVER COMMISSION SECRETARIAT, PUBLIC PARTICIPATION IN THE CONTEXT OF THE MRC 2-3 (1999), available at http://www.mekonginfo.org/mrc_en/doclib.nsf/ (last visited Sept. 22, 2001).

198. Id. at 8-9.

199. East African MOU, supra note 37, art. 7(1)(i).

200. COUNCIL OF MINISTERS OF WATER AFFAIRS OF THE NILE BASIN STATES, POLICY GUIDELINES FOR THE NILE RIVER BASIN STRATEGIC ACTION PROGRAM § 6, available at http://www.nilebasin.org/Documents/TACPolicy.html (last visited June 22, 2001).

201. London Protocol, supra note 21, art. 6(2).

202. Id. art. 6(5)(b).

203. Milich & Varady, supra note 9, at 40.

204. See London Protocol, supra note 21, art. 15.

205. See SANDLER ET AL., supra note 12, at 468-70.

206. Id. at 470.

207. See East African MOU, supra note 37, art. 7(1)(i) ("full involvement of their people in the sustainable use and management of environment and natural resources").

208. Milich & Varady, supra note 9, at 40.

209. KAOSA-ARD ET AL., supra note 5, at 98.

210. Id. at 39.

211. See Agenda Item 21, supra note 56, ch. 18, §§ 18.19, 18.34; see also DRAFT ASEM GUIDELINES, supra note 62, arts. 25, 26.

212. E.g., London Protocol, supra note 21, art. 5(i).

213. See Wates, supra note 60, at 5.

214. Ferrier, supra note 13, at 62 (in the context of Lake Geneva, asserting that "private individuals should have access to courts in the event of violation of water legislation").

215. See Alexandre Kiss, The Protection of the Rhine Against Pollution, 25 NAT. RESOURCES J. 613, 629 (1985).

216. These countries are also parties to the International Convention for the Protection of the Rhine.

217. Joyce Heard, Rhine Pollution Situation: Still Muddy in France, CHEM. ENGINEERING, Sept. 19, 1983, at 12; Kiss, supra note 215, at 633.

218. Carel H.V. de Villeneuve, Western Europe's Artery: The Rhine, 36 NAT. RESOURCES J. 441 (1996).

219. Case 21/76, Ste. Anonyme Handelskwekeri G.J. Bier B.V. et Fondation Reinwater v. Ste. Anonyme Mines de Potasse d' Alsace, Revue Juridique de l'Environnement 323 (1977) (citing Rhinewater case).

220. See de Villeneuve, supra note 218, at 446.

221. Kiss, supra note 215, at 634 n.114.

222. Id. at 635.

223. Id. at 633-36; Andrew H. Darrell, Killing the Rhine: Immoral, But Is It Illegal?, 29 VA. J. INT'L L. 421, 457-58 (1989).

224. Swinomish Tribal Community v. Federal Energy Regulatory Comm'n, 627 F.2d 499, 10 ELR 20628 (D.C. Cir. 1980).

225. Id. at 504, 10 ELR at 20629-30.

226. Id.

227. 627 F.2d 499, 10 ELR 20628 (D.C. Cir. 1980).

228. Id. at 505, 10 ELR at 20630-31.

229. Id. at 503-04, 10 ELR at 20629-30.

230. DAVID LOUTER, CONTESTED TERRAIN: NORTH CASCADES NATIONAL PARK SERVICE COMPLEX, AN ADMINISTRATIVE HISTORY, NATIONAL PARKS SERVICE ch. 7 (1998), available at http://www.nps.gov/noca/ (last visited June 20, 2001).

231. Paul M. Parker, High Ross Dam: The IJC Takes a Hard Look at the Environmental Consequences of Hydroelectric Power Generation, 58 WASH. L. REV. 445, 454-64 (1983).

232. 504 U.S. 555, 22 ELR 20913 (1992).

233. Id. For analysis of Lujan, see Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, "Injuries," and Article III, 91 MICH. L. REV. 163 (1992).

234. See also Wilderness Soc'y v. Morton, 463 F.2d 1261, 2 ELR 20250 (D.C. Cir. 1972) (allowing a Canadian environmental organization and a nonresident Canadian citizen to intervene in a case asserting that the U.S. Secretary of the Interior had not complied with the EIA requirements when it issued a permit for the Alaskan oil pipeline).

235. See SECRETARIAT OF THE COMM'N FOR ENVIRONMENTAL COOPERATION, BACKGROUND PAPER ON ACCESS TO THE COURTS AND ADMINISTRATIVE AGENCIES IN TRANSBOUNDARY POLLUTION MATTERS 64 (1999) (citing an unpublished 1996 decision).

236. See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (stating that international law became part of the U.S. common law upon the adoption of the U.S. Constitution).

237. 157 F.3d 153, 29 ELR 20181 (2d Cir. 1998).

238. Id. at 156, 29 ELR at 20182.

239. Id. at 157, 29 ELR at 20183.

240. E.g., Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 30 ELR 20231 (1999) (alleging that Freeport-McMoran's activities at its Grasberg mine in Irian Jaya, Indonesia, violated human rights and environmental norms under international law when it dumped tailings into several rivers, contaminating the waters and altering their natural flow; while the court dismissed the plaintiff's claims due to nonconformity of the pleadings with the Federal Rules of Civil Procedure, it did not rule on the merits.).

241. Convention on the Law of the Non-Navigational Uses of International Watercourses, supra note 45, art. 32.

242. Id. art. 16(2)(d).

243. Id. art. 16(3).

244. See, e.g., (Kenya) Forests Act, Cap. 385, § 12:

In any proceedings instituted against any person for any offence under this Act or under any rules made thereunder, the court may award an amount not exceeding one-half of any fine imposed on the person who, not being a person in the employment of the Government, may have supplied information which may have led to the conviction of the offender.

245. UNEP/UNDP/DUTCH JOINT PROJECT, supra note 70, at 80 (this was specifically in the context of assessing the legal and institutional context in Kenya); see also id. at 130 (recommending the further development of individual procedural rights to protect the environment in Tanzania).

246. Europe, the Newly Independent States of the Former Soviet Union, Canada, and the United States.

247. In addition to the Aarhus Convention and the London Protocol, the Espoo Convention, addressing transboundary EIA in the UN/ECE region, provides for the option of making institutional and administrative arrangements relating to EIA open "on a reciprocal and equivalent basis."

248. E.g., Aarhus Convention, supra note 58, art. 10(2)(c).

249. Recommendation 2 urges the establishment of legal and regulatory frameworks that ensure public access to information, decision-making, and justice.

250. DRAFT ASEM GUIDELINES, supra note 62, para. 29 (access to administrative and judicial proceedings that are "fair, open, transparent and equitable").

251. E.g., ICJ Statute, supra note 67, art. 34(1). In a significant step toward including non-states as complainants under international law, Article 15 of the Rome Statute of the International Criminal Court allows the prosecutor to initiate investigations on the basis of information provided by NGOs and other "reliable sources."

252. Okaru-Bisant, supra note 64, at 345 n.105 (citing to NGO Memorial on Legal and Scientific Issues (Hung. v. Slovk.), 1997 I.C.J. 92).

253. Bela Liptak, Precedent for the 21st Century; The Danube Lawsuit (1997) (unpublished manuscript, at http://www.hartford-hwp.com/archives/63/005.html (last visited June 20, 2001)).

254. Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 3 (Sept. 25), reprinted in Case Concerning the Gabcikovo-Nagymaros Project, 37 I.L.M. 162 (1998). See Phillipe Sands, International Environmental Litigation and Its Future, 32 U. RICH. L. REV. 1619 (1999); Afshin A-Khavari & Donald R. Rothwell, The ICJ and the Danube Dam Case: A Missed Opportunity for International Environmental Law?, 22 MELB. U. L. REV. 507 (1998).

255. See U.S.-Shrimp Appellate Body Report, supra note 66. For discussions, see Lakshman Guruswamy, The Annihilation of Sea Turtles: World Trade Organization Intransigence and U.S. Equivocation, 30 ELR 10261 (Apr. 2000); Suzanne Pyatt, The WTO Sea Turtle Decision, 26 ECOLOGY L.Q. 815 (1999); David A. Wirth, Some Reflections on Turtles, Tuna, Dolphin, and Shrimp, 9 Y.B. INT'L ENVTL. L. 40 (1998).

256. CIEL. An Introduction: The Shrimp-Turtle Dispute and CIEL's Amicus Brief (undated), available at http://www.ciel.org/shmptur.html (last visited June 20, 2001) (a copy of the amicus brief is available at this site).

257. U.S.-Shrimp Appellate Body Report, supra note 66.

258. See Pyatt, supra note 255, at 835-36.

259. BURNS H. WESTON ET AL., INTERNATIONAL LAW AND WORLD ORDER 718-20 (2d ed. 1990).

260. Id. at 720; see also Inara Scott, The Inter-American System of Human Rights: An Effective Means of Environmental Protection, 19 VA. ENVTL. L.J. 197 (2000).

261. World Bank, Inspection Panel Administrative Procedures (adopted Aug. 1994), available at http://www.worldbank.org (last visited June 20, 2001) [hereinafter Inspection Panel]; Okaru-Bisant, supra note 64, at 354-55.

262. Inspection Panel, supra note 261, at 2, 5 (citing Resolution No. 93-20 of the World Bank's board of directors and Resolution No. 93-6 of the International Development Association; the Inspection Panel Operating Procedures (adopted Aug. 19, 1994); and the Inspection Panel Administrative Procedures (adopted Aug. 19, 1994).

263. LORI UDALL, REVIEW OF WORLD BANK INSPECTION PANEL, SUBMITTED TO THE WORLD COMMISSION ON DAMS FOR THEMATIC REVIEW, INSTITUTIONAL AND GOVERNANCE ISSUES, REGULATIONS, COMPLIANCE, AND IMPLEMENTATION (1999).

264. International Bank for Reconstruction and Development and International Development Association, World Bank Inspection Panel, Resolution Nos. 93-10, IDA 93-6 (1993), available at http://www.worldbank.org (last visited June 20, 2001).

265. World Bank, Inspection Panel Operating Procedures, art. 1 (adopted Aug. 19, 1994).

266. Id. art. 4.

267. UDALL, supra note 263, at 6-7.

268. Inspection Panel, supra note 261.

269. Press Release, World Bank, Kenya Lake Victoria Environmental Management Project: Inspection Panel Investigation to Begin (May 8, 2000), available at http://www.worldbank.org (last visited June 20, 2001).

270. Inspection Panel, supra note 261.

271. Id. at 3.

272. Id. at 4-5.

273. Press Release, supra note 269.

274. UDALL, supra note 263, at 17 (noting approval of only two investigations and two more limited reviews by 1999); FRANCIS FRAGANO & CHRISTIE JORGE, ACCESS TO PROCESS IN INTERNATIONAL ORGANIZATIONS; THE YACYRETA' HYDROELECTRIC DAM PROJECT AND THE WORLD BANK INSPECTION PANEL 6-8 (1999), available at http://www.ispnet.org (last visited June 20, 2001).

275. FRAGANO & JORGE, supra note 274, at 2.

276. YACYRETA INSPECTION PANEL, REQUEST FOR INSPECTION ARGENTINA/PARAGUAY: YACYRETA HYDROELECTRIC PROJECT (1996).

277. UDALL, supra note 263, at 3.

278. FRAGANO & JORGE, supra note 274, at 9.

279. IFC/MIGA, OPERATIONAL GUIDELINES FOR THE OFFICE OF THE COMPLIANCE ADVISOR/OMBUDSMAN 5 (2000).

280. Id. at 14.

281. Id.

282. Id. at 15.

283. Id.

284. Id. at 21-25.

285. NAAEC, supra note 28, art. 14. See NACEC, GUIDELINES FOR SUBMISSIONS ON ENFORCEMENT MATTERS UNDER ARTICLES 14 AND 15 OF THE NORTH AMERICAN AGREEMENT ON ENVIRONMENTAL PROTECTION § 5.4, available at http://www.cec.org/citizen/guide_submit/index.cfm (last visited June 20, 2001). For a review of the citizen submission process, see John H. Knox, A New Approach to Compliance With International Environmental Law: The Submissions Procedure of the NAFTA Environmental Commission, 28 ECOLOGY L.Q. 1 (2001); David L. Markell, The Commission for Environmental Cooperation's Citizen Submission Process, 12 GEO. INT'L ENVTL. L. REV. 545 (2000); Jay Tutchton, The Citizen Petition Process Under NAFTA's Environmental Side Agreement: It's Easy to Use, but Does It Work?, 26 ELR 10018 (Jan. 1996). Of note is a recent precedent allowing environmental organizations to intervene in trade disputes under the NAFTA Arbitration Panel. See Tribunal Decision on Petitions From Third Persons to Intervene as "Amici Curiae" (2001), at http://www.iisd.org/pdf/methanex_tribunal_first_amicus_decision.pdf (last visited June 20, 2001).

286. NAAEC, supra note 28, art. 15.

287. The submitters included Department of the Planet Earth, Sierra Club of Canada, Friends of the Earth, Washington Toxics Coalition, National Coalition Against Misuse of Pesticides, WASHPIRG, International Institute of Concern for Public Health, Reach for Unbleached, and Dr. Joseph Cummins.

288. Determination Pursuant to Article 14(1), SEM 97-005 (May 26, 1998), in Registry of Submissions on Enforcement Matters, at http://www.cec.org/citizen/guides_registry/index.cfm?varlan=english&orderBy=sub_ID&party= (last visited June 20, 2001).

289. The NACEC dismissed a third claim: that the United States failed adequately to pursue pollution prevention-oriented approaches to air pollution, which qualifies as a lack of "effective enforcement" of the Pollution Prevention Act and the CAA. The NACEC held that this third claim was based on a failure to comply with a directive to EPA that was insufficiently "clearly enforcement-oriented." Secretariat's Determination Under Article 14(2) (1999), at 6.

290. Id.

291. SEM 97-005, supra note 288.

292. Id. at 3-4.

293. Id. at 4.

294. First Response from the United States Under Article 21(1)(b), SEM 98-003 (2000), available at http://www.cec.org/files/english/1st-resp.pdf (last visited June 20, 2001); Second and Final Part of the United States Response Under Article 21(1)(b), SEM 98-003 (2000), available at http://www.cec.org/files/english/fin-resp.pdf (last visited June 20, 2001).

295. See http://www.cec.org/citizen/index.cfm?varlan=english (last visited Oct. 5, 2001).

296. SEM 98-003 (May 27, 1998), at 4; SEM 97-005, supra note 288, at 4. Both determinations were careful to note that the Secretariat had not foreclosed the possibility of such a claim being successfully raised.

297. NACEC, SILVA RESERVOIR: AN EXAMPLE OF REGIONAL COOPERATION IN NORTH AMERICA (undated), available at http://www.cec.org (last visited June 20, 2001).

298. See id.; ERIC DANNENMAIER & CARLA ACEVES, LOCAL AND INTERNATIONAL PARTICIPATION IN THE CASE OF MEXICO'S TURBIO RIVER (1998).

299. BECC, General Procedures Regarding Complaints From Groups Affected by Projects, art. 1 (2000), available at http://www.cocef.org/antecedentes/quejasingles.html (last visited June 20, 2001).

300. Id. art. 2(b).

301. Id. art. 5(c).

302. Id. art. 5(d).

303. Id. art. 5(e).

304. Id. art. 5(f)-(g).

305. See id. art. 5(f) (requiring the board to send the determination to the complainant).

306. NAAEC, supra note 28, at ch. 1; see also BECC, Procedures for Independent Assessments (2000), available at http://www.cocef.org/antecedentes/evalindepeing.html (last visited June 20, 2001).

307. Id. art. 3(a).

308. Id. art. 3(b)-(c).

309. Id. arts. 6, 7(b).

310. Kofi Annan, Foreward, in STEC & CASEY-LEFKOWITZ, supra note 1, at v.

311. James C.N. Paul, The United Nations and the Creation of an International Law of Development, 36 HARV. INT'L L.J. 307, 316 (1995); Daniel D. Bradlow, Regional Developments: Africa, 25 INT'L L. 1053, 1055 (1991).

312. African Charter for Popular Participation in Development, done at Arusha, Feb. 16, 1990, U.N. Doc. E/ECA/CM.16/11; see also Note Verbale, U.N. GAOR, 45th Sess., Agenda Items 12, 82, U.N. Doc. A/45/427 (1990) (including as Appendix 1, U.N. Economic Commission for Africa Conference of Ministers Responsible for Economic Planning and Development, 25th Sess., Res. 691 (XXV) (May 19, 1990), available at http://www.un.org.partners/civil_society/documents/a-45-427.htm (last visited June 20, 2001)).

313. Note Verbale, supra note 312.

314. Russel L. Barsh, Current Development: A Special Session of the U.N. General Assembly Rethinks the Economic Rights and Duties of States, 85 AM. J. INT'L L. 192, 197 n. 44 (1991); Bradlow, supra note 311, at 1054-58; Jonathan Cahn, Challenging the New Imperial Authority: The World Bank and the Democratization of Development, 6 HARV. HUM. RTS. J. 159, 186-87 (1993); Claudio Grossman & Daniel D. Bradlow, Are We Being Propelled Towards a People-Centered Transnational Legal Order?, 9 AM. U. J. INT'L L. & POL'Y 1, 23 (1999); Taylor, supra note 14, at 98-99; Paul, supra note 311, at 316.

315. Paul, supra note 311, at 316 (noting the influence of the charter in the subsequent development of the African Common Position on Human and Social Development in Africa, which was prepared for the 1994 World Summit on Social Development).

316. See SHARMA ET AL., supra note 3, at 53-55, 65.

317. SADC Protocol, supra note 49; Protocol on Mining in the Southern African Development Community (SADC), done at Blantyre, Malawi, Sept. 5, 1995 [hereinafter SADC Protocol on Mining]; see also Draft Protocol on Wildlife Conservation and Law Enforcement in the Southern African Development Community (SADC), done at Blantyre, Malawi, Dec. 1998.

318. See SADC Protocol, supra note 49, art. 5(b)(i), (b)(iv), (d)(iii), (d)(iv), (e).

319. See SADC Protocol on Mining, supra note 317, arts. 2(7), (9), 3 ("Information Exchange"), at 6.

320. Id. art. 8(2).

321. Id. art. 8(1), (3), (4).

322. See BRUCH ET AL., supra note 143, tbl. 1.

323. Milich & Varady, supra note 9, at 30, 32, 34.

324. ERIKSEN, supra note 49, at 26. For example during the 1970s and 1980s, the MRC was largely dormant.

325. Id. at 32.

326. Id. at 41.

327. Milich & Varady, supra note 9, at 37.

328. KAOSA-ARD ET AL., supra note 5, at 173 ("Thailand has a thousand years' tradition of people's involvement in the management of water resources."), 181 (public participation in Vietnam dating back "almost 4,000 years").